Arroyo et al v. Eischen et al

OCR transcription for search; preserved printed pages are authoritative

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Charlotte N. Sweeney

Civil Action No. 1:21-cv-01687-CNS-MDB

JOSE ARROYO,
HEATHER BOEHM,
SAMUEL CORDO, and
AMBER MILLER,

Plaintiffs,
V.

ALEXANDER HALL,

TIMOTHY HOLCOMB,

DEREK MYERS,

JOSHUA MOORE,

ANDREW PRIVETT,

DUSTIN ROSS,

CHAD WEISE, and

UNITED STATES OF AMERICA,

Defendants.

ORDER

Before the Court is Defendant Derek Myers’ motion to dismiss. ECF No. 261. For

the following reasons, the motion to dismiss is GRANTED.

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I. BACKGROUND 1
A. Factual Background
On June 20, 2019, the U.S. Penitentiary Florence (USP Florence) held a training
exercise involving a mock hostage situation for its Special Operations Response Team
(SORT). ECF No. 1, ¶¶ 20–21. SORT is composed of armed officers who are responsible
for responding to prison disturbances. Id., ¶ 21. To maintain its BOP certification, SORT
frequently runs mock training exercises. Id. All BOP employees are required to participate
in these exercises. Id.
Defendants Fernandez, Hall, Holcomb, Moore, Ross, and Weise were all members
of SORT at the Federal Correctional Complex Florence (FCC Florence), with Holcomb
acting as the team lead. Id., ¶ 22. Defendant Myers was responsible for ensuring that
FCC Florence’s SORT received the trainings to retain its certification. Id. Defendants
Privett and Harris were officers from other federal prison complexes who were visiting
FCC Florence as regional Tactical Trainers to facilitate the training. Id. That morning,
plaintiffs were all working in the business office. Id., ¶ 23. Plaintiff Boehm was on crutches
after suffering complications from a recent surgery and had physicians’ orders not to
respond to emergencies, run, or lift objects over 25 pounds. Id., ¶ 25, 34. Plaintiff Miller
was pregnant with an at-risk pregnancy and was also observing physical restrictions
imposed by her doctor. Id. Five other employees and one civil contractor, Jessie Patch,
were also working in the business office. Id., ¶ 26.
1 The following facts are drawn from Plaintiff’s complaint. ECF No. 1. For purposes of this motion, the Court
accepts as true, and views in the light most favorable to Plaintiff, all factual allegations contained in the
complaint. See Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009).
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At 8:00 a.m., the employees in the business office heard a “man-down” alarm in
the lobby of the administrative building, which indicated a possible assault on staff. Id., ¶
28. An officer in the complex’s main control center (Main Control) announced to all
employees’ radios that Defendant Fernandez was the employee who needed assistance.
Id. Main Control facilitates official communications and, in the event of an emergency or
training exercise, is staffed with supervisors with authority to dictate actions taken by
SORT. Id., ¶ 29. Defendants Eischen, Harris, and Myers were among the staff listening
to radio traffic throughout the mock exercise. Id.
BOP policy requires all employees who are able to respond to a man-down call to
immediately respond. Id. Pursuant to that policy, three employees in the business office
(Crespin, Aperyan, and Dunderman) reported to the lobby. Id. Webster and Plaintiff Miller
followed them, and Webster told Plaintiff Miller that hostages were being taken. Id.
Plaintiff Miller then realized that SORT was conducting a mock hostage exercise. Id., ¶
30. Webster and Plaintiff Miller returned to the business office and told Plaintiffs Arroyo,
Boehm, and Cordo that a hostage exercise was underway and that the other Business
Office employees may have been taken as hostages. Id. Plaintiffs Miller and Cordo closed
the door to the Business Office and locked themselves inside, pursuant to BOP policy
requiring employees to establish a safe haven in a hostage situation until an “all clear”
announcement. Id., ¶¶ 31, 32.
Around 8:25 a.m., Defendant Myers and another BOP staff member began
“bashing” on the Business Office door. Id., ¶ 33. Believing they were trying to breach the
business office, Plaintiffs, along with Webster, Quintiliano, and Patch, retreated to the
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cashier’s cage and locked the door and the roll-up steel shutters over the windows. Id.
The cashier’s cage is eight feet long by five feet wide, containing a large L-shaped desk
with a hutch, a large safe, a double filing cabinet, two single filing cabinets, and two desk
chairs. Id., ¶ 35. Webster and Quintiliano sat on filing cabinets, Plaintiff Miller and Patch
sat on the safe, and Plaintiff Arroyo sat on the floor in front of the door. Id., ¶ 35. The
seven individuals in the cashier’s cage could hardly move after establishing their seating
arrangement. 	Id. 	Webster 	called 	Main 	Control 	to 	report 	that 	Plaintiffs, 	Webster,
Quintiliano, and Patch were sheltering in place in the cashier’s cage. Id., ¶ 36.
Minutes later, Main Control announced that Defendant Fernandez had been
compromised for purposes of the drill. Id., ¶ 37. Dunderman, a Business Office employee,
then requested that Plaintiffs open the Business Office so she could escape. Id., ¶ 38.
Plaintiffs refused because it would be a violation of BOP policy to compromise their safe
haven. Id. They also believed that Dunderman was taken hostage and was trying to lure
them out. Id.
Shortly after, Plaintiffs realized that their internal and external telephone lines had
been shut off. Id., ¶ 39. Plaintiffs emailed with Solano, whose office was outside the
cashier’s cage, to ask if they were permitted to use the restroom. Id., ¶¶ 40–41. Solano
asked Defendant Myers, who said that they could use the restrooms but that the area
beyond was roped off for the exercise. Id., ¶ 41. However, minutes later, Solano emailed
Plaintiff Cordo saying that Solano had been taken hostage. Id. Plaintiffs concluded that
the hostage takers were again using hostages to attempt to lure them out of the cashier’s
cage. Id.
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Around 10:00 a.m., Plaintiffs heard keys outside the Business Office. Id., ¶ 42.
They believed that SORT had access to Business Office keys because they had taken
Business Office employees hostage. Id. In response, Arroyo, Cordo, and Quintiliano
barricaded the door shut with two filing cabinets and a cooler. Id. Around 11:00 a.m.,
Plaintiffs heard noises in the Business Office and realized that SORT officers were there.
Id., ¶ 43. Plaintiffs turned off the lights and the fan in the cashier’s closet and stayed silent.
Id. Solano told Plaintiffs to come out. Id., ¶ 44. However, Solano had been taken hostage
previously, so Plaintiffs believed that the hostage takers were using Solano to lure them
out of their safe haven. Id. Defendants Weise and Holcomb called Plaintiff Cordo’s name
and said, “Hey, we got your buddy out here,” and “Hey guys, come on out.” Id., ¶ 45.
Plaintiffs remained silent. Id., ¶ 46.
Defendants continued to tell Plaintiffs to come out of the cage. Id. Defendant Weise
threatened to throw a flash strip, an explosive device, under the door if Plaintiffs did not
come out. Id. Plaintiff Cordo shouted back, “No, we are in here.” Id. Defendants Weise
and Holcomb continued to shout, and Defendant Moore threatened to shoot OC spray
into the cashier’s cage. Id., ¶ 47.
It is against BOP policy to shoot OC spray at fellow BOP staff. Id. BOP policy also
requires SORT officers to declare themselves “out of role” and to identify themselves in
order to signal the end of a training exercise. Id., ¶ 48. Defendants did not do so. Id. There
had also been no “all clear” announcement. Id. Thus, Plaintiffs did not open the door. Id.
Defendants began to slam their bodies into the door, and one officer shoved a
crowbar through the mailbox slot in the cashier’s window to pry open the steel shutters.
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Id., ¶¶ 49, 50. Webster yelled out that Defendants were destroying government property,
but they continued to pry the window open until it was six to eight inches open. Id., ¶ 51.
Then, without warning or provocation, Defendants shot a projectile, which Plaintiffs
believe was a pepper ball or sting ball, through the opening. Id., ¶ 52. Plaintiffs grew more
afraid; Plaintiff Miller began screaming for the officers to stop, that they were out of role,
and that they were going to harm someone. Id., ¶ 53. Patch was sobbing. Id.
Defendant Moore threatened to shoot OC spray into the room. Id., ¶ 54. Plaintiff
Boehm responded that they could not use OC spray because it was against policy to
spray BOP employees during a mock exercise, let alone with a civilian contractor in the
room. Id. Defendants screamed back that they did not care who was inside, and again
threatened to shoot OC spray. Id., ¶ 55. Plaintiffs were afraid that Defendants were trying
to lure them into violating BOP policy, and also terrified by their hostility and threats. Id.,
¶ 56. Plaintiff Arroyo yelled that Plaintiffs were not coming out. Id.
Defendant Weise recognized Plaintiff Arroyo’s voice, asked if Arroyo was inside,
and said, “you know who the FUCK I am! Get out of the room.” Id., ¶ 57. Defendants
Moore and Holcombe continued threatening to use OC spray and ramming the door. Id.,
¶ 58. Plaintiffs, attempting to de-escalate the situation, suggested that the officers ask
Main Control to turn their phones on and verify that the officers were not compromised.
Id., ¶ 60. Defendants falsely claimed that they had called Plaintiffs and that Plaintiffs did
not answer. Id., ¶ 61. One Defendant announced on the radio that they had not had any
contact with people inside the cashier’s cage. Id., ¶ 62. Plaintiff Miller shouted that this
was a lie. Id.
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Quintiliano yelled that he had asthma and that they could not use OC spray on
him. Id., ¶ 63. Plaintiff Boehm yelled, “You need to stop! We have contract staff and staff
with medical issues in here!” Id. Plaintiff Miller yelled that she was pregnant and that the
officers were taking the exercise too far. Id.
Plaintiff Cordo, peering through the gap in the cashier’s window, asked Defendants
Weise and Holcomb how Plaintiffs could know whether the officers were compromised.
Id., ¶ 64. They did not respond. Id., ¶ 65. Defendant Moore again threatened to shoot OC
spray into the room. Id. Defendant Weise then shot OC spray at Plaintiff Cordo, using a
large MK-9 aerosol bottle intended for crowd control. Id., ¶ 66. One or more of the
Defendants then began shooting nine-millimeter simunition rounds and pepper balls into
the room. Id., ¶ 67. One simunition round hit Plaintiff Cordo’s hand. Id. MK-9 aerosol
bottles, simunition rounds, and pepper balls must be checked out with permission from a
warden. Id.
Plaintiffs smelled OC and repeatedly yelled “out of role.” Id., ¶¶ 68–69. Plaintiff
Cordo announced that they were coming out and began removing the barricade. Id., ¶
69. Defendants Weise, Hall, and Ross, who were armed and wearing tactical gear, kicked
the door open, yelled for Plaintiffs to get on the ground, and pointed guns at Arroyo. Id.,
¶ 70. Defendant Ross punched Plaintiff Cordo in the face. Id., ¶ 72. Defendant Hall
punched Quintiliano in the face and shoved him into Plaintiff Boehm, knocking her off her
crutches and causing her to pin Plaintiff Miller’s leg into the safe. Id., ¶ 73. Defendant Hall
repeatedly punched Quintiliano and shoved Plaintiff Boehm into the safe. Id., ¶ 73.
Plaintiff Arroyo shouted that there were injured staff in the room, to which Defendant Ross
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responded, “Oh, yeah?” and shot Plaintiff Arroyo in the chest with a simunition round from
a nine-millimeter pistol. Id., ¶¶ 74–75. The bullet burned through Plaintiff Arroyo’s shirt
and left a bruise on his chest. Id., ¶ 75. Plaintiffs continued to scream “out of role.” Id., ¶
76. Plaintiff Miller, whose leg was still pinned between Defendants and the safe, was
crying in pain. Id., ¶ 77. Plaintiff Boehm screamed that Defendant Hall was hurting her
and she was on crutches, but he did not stop, so she began continuously screaming. Id.,
¶ 78. Defendants then left the cashier’s cage. Id., ¶ 80.
Once outside, two SORT officers yelled at Plaintiff Arroyo, and Defendant Moore
screamed at Plaintiff Boehm to exit the room. Id., ¶¶ 80–81. Defendant Holcomb yelled
at Defendant Moore to “drag her ass out!” Id., ¶ 81. Plaintiff Boehm responded that she
was on crutches and there were papers and objects all over the floor. Id. Defendant Moore
kicked a pathway clear and Plaintiff Boehm left the cashier’s cage. Id., ¶ 81.
Plaintiff Miller was unable to get off of the safe because of her injuries, and asked
Webster for help. Id., ¶ 82. Defendant Moore lifted her off the safe. Id. Upon exiting the
cashier’s cage, Plaintiffs saw other SORT officers in the common area of the Business
Office, who had done nothing to stop the attack. Id., ¶ 83. When Plaintiffs asked
Defendants why they had escalated the situation, they responded that Plaintiffs “should
have just opened the door.” Id., ¶ 86.
Defendant Myers, who was standing in the Business Office, called the Command
Center on his radio and relayed: “End of mock, end of mock, we have a real situation up
here.” Id., ¶ 85. When Plaintiff Boehm asked Defendant Myers why he let the training
exercise escalate into violence against BOP staff members, he shouted that it was not
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his team and that they would “figure it out.” Id. Defendant Myers, as the Emergency
Preparedness Officer, was responsible for planning and facilitating the mock training
exercise. Id., ¶ 89. He had briefed Defendant Fernandez on the training exercise
beforehand. Id.
B. Procedural Background
Plaintiffs filed their complaint on June 18, 2021. ECF No. 1. All Defendants then
filed motions to dismiss, after which Plaintiffs voluntarily dismissed the two state law
claims pleaded against Defendant Myers. ECF Nos. 151 (order), 149 (motion for voluntary
dismissal). The United States then substituted itself as Defendant for Counts II and III, via
a Westfall Act certification, on the basis that the individual Defendants were acting within
their scope of employment. ECF No. 59. The government then moved to dismiss those
two claims. ECF No. 60. After conducting limited discovery on the issue, Plaintiffs filed a
motion for summary judgment to set aside the United States’ Westfall Act certification.
ECF No. 169. The Court granted the motion, rejected the United States’ Westfall
certification, and struck the substitution of the United States for the individual Defendants,
finding 	that 	the 	individual 	Defendants 	were 	not 	acting 	within 	the 	scope 	of 	their
employment. ECF No. 211. Defendants appealed. ECF Nos. 219–21. The Court denied
Defendants’ pending motions to dismiss without prejudice, allowing Defendants to refile
in light of the Tenth Circuit’s ruling on the appeals. ECF No. 243. Defendant Myers
appealed that denial. ECF No. 244. The Tenth Circuit dismissed the appeal. ECF Nos.
256, 257. The Tenth Circuit then affirmed the Court’s Westfall Act ruling. ECF Nos. 258,
263. Defendant Myers refiled his present motion to dismiss. ECF No. 261. The remaining
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Defendants also refiled their motions to dismiss, ECF Nos. 274, 276, 308, which will be
addressed in a forthcoming order.
II. LEGAL STANDARD
Under Rule 12(b)(6), a court may 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,
a complaint must allege facts, accepted as true and interpreted in the light most favorable
to the plaintiff, to state a claim to relief that is plausible on its face. See, e.g., Mayfield v.
Bethards, 826 F.3d 1252, 1255 (10th Cir. 2016). A plausible claim is one that allows the
court to “draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). If a complaint’s allegations are “so
general that they encompass a wide swath of conduct, much of it innocent,” then a plaintiff
has failed to “nudge [the] claims across the line from conceivable to plausible.” Robbins
v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quotation omitted). In assessing a
claim’s plausibility, “legal conclusions” contained in the complaint are not entitled to the
assumption of truth. See Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214
(10th Cir. 2011). The standard, however, remains a liberal pleading standard, and “a well-
pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those
facts is improbable, and that a recovery is very remote and unlikely.” Dias v. City & Cnty.
of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (quotation omitted).
III. ANALYSIS
Plaintiffs bring one claim against Defendant Myers: an excessive force Bivens
claim. Defendant Myers argues that a Bivens remedy is not available to Plaintiffs, that
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Plaintiffs fail to state a supervisory liability claim, and that he is entitled to qualified
immunity. Because the Court agrees that a Bivens remedy is not available, the Court
grants the motion to dismiss without addressing Defendant Myers’ other arguments. 2
A. Bivens Claim
Defendant Myers argues that the Bivens claim should be dismissed because
allowing a Bivens remedy would be an impermissible expansion of Bivens to a new
context. ECF No. 261 at 5. Plaintiffs disagree. ECF No. 283 at 4.
Bivens claims allow plaintiffs to seek damages from a federal officer for a violation
of a constitutional right in certain contexts. Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388, 397 (1971). The original Bivens case involved a
violation of the Fourth Amendment’s prohibition on unreasonable search and seizure. Id.
at 395 (“[D]amages may be obtained for injuries consequent upon a violation of the Fourth
Amendment.”). Since then, the Supreme Court extended the remedy to two additional
contexts: 	(1) 	a 	claim 	for 	gender 	discrimination 	in 	employment 	under 	the 	Fifth
Amendment’s Due Process Clause, Davis v. Passman, 442 U.S. 228 (1979); and (2) a
claim for failure to provide adequate medical treatment under the Eighth Amendment,
Carlson v. Green, 446 U.S. 14 (1980). However, the Supreme Court, now much less
favorable toward implied causes of action in general, has declined to extend Bivens
remedies to any new context and has cautioned against doing so. See Ziglar v. Abbasi,
2 Generally, courts first determine whether a Bivens action exists before analyzing qualified immunity. See
Big Cats of Serenity Springs, Inc. v. Vilsack, 843 F.3d 853, 858 (10th Cir. 2016) (analyzing Bivens claim
before qualified immunity claim); Ioabe v. Hodges, 939 F.3d 945, 951 (9th Cir. 2018) (“Before reaching the
issue of qualified immunity, the first question we must address is whether [the plaintiff] may bring a Bivens
suit.”).
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582 U.S. 120, 135 (2017); Egbert v. Boule, 596 U.S. 482, 492 (2022); Noe v. United
States, No. 21-cv-3340-CMA-STV, 2024 WL 1469406 (D. Colo. Feb. 5, 2024) (describing
the 	increasingly 	unfavorable 	jurisprudence 	towards 	Bivens 	claims). 	After 	Egbert,
expanding the Bivens remedy “is now a disfavored judicial activity” such that “[e]ven a
single sound reason to defer to Congress is enough to require a court to refrain from
creating such a remedy.” Id. (quoting Ziglar, 582 U.S. at 135).
The Supreme Court in Egbert articulated a two-step inquiry to determine whether
to allow a Bivens claim, but clarified that the essential question is “whether there is any
reason to think that Congress might be better equipped to create a damages remedy.” Id.
Courts first ask “whether the case presents a new Bivens context—i.e., is it meaningfully
different from the three cases in which the Court has implied a damages action.” Egbert,
596 U.S. at 492 (internal quotation marks omitted). Second, “if the claim arises in a new
context, a Bivens remedy is unavailable if there are special factors indicating that the
Judiciary is at least arguably less equipped than Congress to weigh the costs and benefits
of allowing a damages action to proceed.” Id. (internal quotation marks omitted). The
second inquiry involves determining whether there was any alternative remedial structure
present or other “special factor counselling hesitation” in creating an implied remedy. Id.
Following Egbert, the Tenth Circuit has announced that expanding Bivens is
“impermissible in virtually all circumstances” and that Bivens is “now all but dead.” Silva
v. United States, 45 F.4th 1134, 1140 (10th Cir. 2022); Rowland v. Matevousian, 121
F.4th 1237, 1242 (10th Cir. 2024). After Egbert, if a case arises in a new context, courts
“may 	dispose 	of 	Bivens 	claims for 	two 	independent 	reasons: Congress 	is 	better
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positioned to create remedies” in that context, and “the Government already has provided
alternative remedies that protect plaintiffs.” Silva, 45 F.4th at 1141.
1. 	New Context
The Court first addresses whether this case arose in a new context. Rowland, 121
F.4th at 1242. The inquiry of whether the case arises in a new context is, essentially, a
question of whether the facts of the case are “materially different” from the facts of the
recognized Bivens claims. Id.
Defendant Myers argues that this case arose in a new context: the Supreme Court
has not recognized a Bivens claim for BOP employees’ use of alleged excessive force
against other BOP employees during a training exercise. Defendant Myers relies on Silva,
in which the Tenth Circuit held that a prisoner could not bring a Bivens claim against a
corrections officer for excessive force. 3 45 F.4th 1134. Plaintiffs argue that this is not a
new context, but instead is a “quintessential Bivens claim arising from the ‘common and
recurrent sphere’ of an unlawful seizure under the Fourth Amendment.” ECF No. 283 at
6 (citing Ziglar, 582 U.S. at 134).
However, 	Plaintiffs 	do 	not 	fully 	consider 	the 	recent 	jurisprudence 	on 	what
constitutes a new context. The Supreme Court “has said in effect that almost any
difference between the case at hand and the three Court precedents can justify rejecting
a cause of action.” Logsdon v. U.S. Marshal Serv., 91 F.4th 1352, 1355 (10th Cir. 2024)
(citing Egbert, 596 U.S. at 503 (Gorsuch, J. concurring) (“Candidly, I struggle to see how
3 The claim was original brought under the Eighth Amendment’s prohibition against cruel and unusual
punishment, but the Tenth Circuit recognized that it was really an excessive force claim.
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this set of facts differs meaningfully from those in Bivens itself.”)). “Small differences can
easily satisfy the new context inquiry.” Rowland, 121 F.4th at 1243 (citing Ziglar, 582 U.S.
at 147).
Thus, the first step is a fact-intensive inquiry to determine whether any small,
material differences exist between the present case and the three original Bivens
contexts. For instance, in Rowland, the Tenth Circuit held that the case arose in a new
context 	from 	Carlson, even 	though it 	was also an Eighth Amendment deliberate
indifference claim against prison officials. Id. (“[E]ven significant parallels to one of the
Court’s previous Bivens cases may not be enough to show that a case arises in the same
context.” (citing Ziglar, 582 U.S. at 147)). The Tenth Circuit held that the circumstances
were materially different from those in Carlson, and thus involved a new context, because
(1) the prison officials acted pursuant to doctor’s orders, whereas in Carlson they acted
against doctor’s orders; (2) the prison officials did not give the petitioner contra-indicated
drugs, knowingly keep him in a “grossly inadequate” medical facility, or prescribe the use
of a medical instrument that was “known to be inoperative,” as the officials in Carlson had;
and (3) the petitioner ultimately did receive the treatment he sought, unlike in Carlson. Id.
The question here becomes whether the facts of the claim are materially different
from those cases where the Supreme Court has previously recognized a Bivens claim.
Of the three cases where the Supreme Court has recognized a Bivens claim, Bivens itself
is the most similar to the present case. The Court finds, however, that the facts here are
materially different from those in Bivens.
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In Bivens, the case arose from an arrest and search, during which Federal Bureau
of Narcotics agents entered petitioner’s apartment, manacled him, threatened to arrest
his family, and used unreasonable force in arresting the petitioner. Bivens, 403 U.S. 388.
The present case involves BOP officials, not Federal Bureau of Narcotics agents;
Plaintiffs were co-workers of Defendants, not citizens subject to search and arrest; the
situation arose out of a training exercise, not a warrantless search; the situation occurred
in a prison, not in a home; and the claim is for excessive force, not unreasonable search
and seizure.
Thus, because Plaintiffs’ claims are materially different from any of the three
Supreme Court cases where a Bivens cause of action has been recognized, this claim
arises in a new Bivens context.
2. 	Alternative Remedy
The Court then turns to the second inquiry: whether any alternative remedy exists,
or whether there are special factors that warrant hesitation in creating a new Bivens
remedy. The Court begins by identifying any alternative remedial schemes available to
Plaintiffs. See Silva, 45 F.4th at 1142. In analyzing whether an alternative remedy
precludes a Bivens claim, courts consider “the nature and extent of the statutory scheme
created by Congress, and assess the significance of that scheme in light of the factual
background of the case at hand.” Big Cats of Serenity Springs, Inc. v. Vilsack, 843 F.3d
853, 861 (10th Cir. 2016). “The appropriate consideration is whether an alternate, existing
process demonstrates Congress’s intent to exclude a damages remedy.” Id. (citing
Schweiker, 487 U.S. at 435). “Evidence of that intent would be a scheme that provides
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adequate deterrence of constitutional violations and at least some form of relief for the
harm.” Id. (citing Malesko, 534 U.S. at 70).
Defendant Myers argues that Plaintiffs do have alternative remedies available to
them. First, he argues that inspectors general are authorized to investigate and report
civil rights abuses by federal law enforcement officers. See 5 U.S.C. §§ 402, 413(b). The
Court agrees that this is an available alternative remedy. The Tenth Circuit in Logsdon
held that “the internal USMS grievance procedure and the Department of Justice’s Office
of 	the 	Inspector 	General 	(OIG) 	investigation 	procedure 	are 	adequate 	alternative
remedies.” 91 F.4th at 1359. The BOP is similarly a Bureau within the Department of
Justice, and it is undisputed that the OIG conducted an investigation regarding this
incident. The Supreme Court and Tenth Circuit have made clear that “it is not the
judiciary’s function to assess the adequacy of executive orders or legislative remedies in
deterring constitutional violations.” Id. at 1360. Thus, an alternative remedy exists such
that Congress is better positioned to weigh the appropriateness of a damages remedy in
this context. 4
4 Defendant Myers also argues that the Federal Tort Claims Act (FTCA) is an alternative remedy. 28 U.S.C.
§ 2679. See Schwarz v. Meinberg, 761 Fed. Appx. 732, 734-35 (9th Cir. 2019) (holding that FTCA is an
alternative remedy precluding Bivens action). However, the Court is not convinced that the FTCA is an
adequate alternative remedy. The FTCA provides a federal cause of action for torts against the United
States, not individual federal actors. See Smith v. United States, 561 F.3d 1090, 1101 (10th Cir. 2009);
Carlson v. Green, 446 U.S. 14, 19–23 (1980) (finding it “crystal clear” that Congress intended the FTCA
and Bivens to serve as “parallel” and “complementary” sources of liability). Because the FTCA does not
apply against individual actors, it does not have the same deterring effect as Bivens. See Mccullon v. Parry,
No. 18-cv-00469-NYW, 2021 WL 877718, at *7 (D. Colo. Mar. 9, 2021). Defendant Myers also argues that
the Federal Employees’ Compensation Act (FECA), 5 U.S.C. §§ 8102–93, is an available remedy. FECA
addresses work-related injuries of federal employees. Id. It covers claims “for the disability or death of an
employee resulting from personal injury sustained while in the performance of his duty.” 5 U.S.C. § 8102(a).
FECA “limits an employee’s remedy against the Government, as employer, to the confines of the statute.”
Allman v. Hanley, 302 F.2d 559, 563 (5th Cir. 1962). However, numerous circuit courts have held that FECA
does not bar a federal employee’s suit against individual coworkers. See, e.g., Salazar v. Ballesteros, 17
Fed. Appx. 129, 130–31 (4th Cir. 2001) (holding that FECA does not prohibit suits against fellow
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3. 	Special Factors
Defendant Myers also argues that numerous factors counsel against recognizing
a Bivens claim. As to the “special factors” inquiry, the question is not “whether Bivens
relief is appropriate in light of the balance of circumstances in the particular case,” but
instead whether there is “any rational reason” 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 (internal quotation marks omitted). In other words, “if there is any reason to think
that judicial intrusion into a given field might be harmful or inappropriate,” or the “potential
for such consequences,” a court cannot allow a Bivens remedy. Id. (internal quotation
marks omitted). 5 Similarly, “if there are sound reasons to think Congress might doubt the
efficacy or necessity of a damages remedy[,] the courts must refrain from creating [it].”
Ziglar, 582 U.S. at 135.
Defendant Myers argues that this case involves special factors because it involves
federal employees suing other federal employees. ECF No. 261 at 8. The Supreme Court
had previously affirmed the Fifth Circuit’s denial of a Bivens claim in the context of a
federal employee suing his supervisor. Bush v. Lucas, 647 F.2d 573, 577 (5th Cir. 1981)
aff’d 462 U.S. 367 (1983). Inferring a Bivens remedy in such a context, the Fifth Circuit
reasoned,
would tend to interfere with and undermine the traditional
control of the Government over its internal and personnel
employees); Heathcoat v. Potts, 790 F.2d 1540, 1543 (11th Cir.1986) (same); Davis v. Harrod, 407 F.2d
1280, 1282 n. 2 (D.C.Cir.1969). Similarly, at least one circuit has held that FECA does not bar Bivens
actions against individual federal employees. Gustafson v. Adkins, 803 F.3d 883, 890 (7th Cir. 2015). FECA
thus does not bar Bivens claims against individual federal employees.
5 The Supreme Court in Egbert determined that a court is not competent to authorize a damages action
against Border Patrol agents in part because of the special factor of national security considerations. Id.
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affairs. It might encourage aggrieved employees to bypass
the statutory and administrative remedies in order to seek
direct judicial relief and thereby deprive the Government of the
opportunity to work out its personnel problems within the
framework it has so painstakingly established. Ultimately, it
would 	provide 	a 	disincentive 	for 	Congress 	to 	continue
improving the mechanisms by which an aggrieved employee
can protect his rights.
Id. at 577. Plaintiff argues that Bush is distinguishable because the employees there were
suing their coworkers, not a supervisor. However, the reasoning applies equally to
coworkers as it does to supervisors, because both involve the government’s control over
its internal and personnel affairs.
Defendant Myers also argues that special factors exist because the claim arose
from a mock training exercise, which implicates the prison’s security practices. ECF No.
261 at 11. In the context of the use of force during a prison disturbance, the Supreme
Court has noted that “the admonition that a prison’s internal security is peculiarly a matter
normally left to the discretion of prison administrators carries special weight.” Whitley v.
Albers, 475 U.S. 132, 321 (1986). While training exercises are undoubtedly different than
using force in response to a prison disturbance, the rationale for leaving matters of
security 	to 	prison 	administrators 	appropriately 	applies 	here. 	These 	concerns 	are
especially prevalent here because the claim is against Defendant Myers in his supervisory
capacity. Thus, judicial intrusion in prison security may lead to unintended consequences
that Congress is better positioned to evaluate. Because this special factor exists, the
Court cannot create a new Bivens remedy here.
* * *
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Thus, because a Bivens remedy is unavailable, Defendant Myers’s motion to
dismiss is granted.
IV. CONCLUSION
Consistent with the above analysis, the Court GRANTS Defendants’ motion to
dismiss, ECF No. 261.

Dated this 18th day of March 2025.

dge

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