Pushkantser v. Otero County Processing Center

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MARK PUSHKANTSER,
Plaintiff,
v. No. 25-cv-1146-KG-KBM
FNU SOTO, et al,
Defendants.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiff’s pro se Amended Prisoner Complaint for
Violation of Civil Rights. (Doc. 1) (Complaint). He seeks money damages under Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) on the ground that
federal officials stole his property, and his conditions of confinement are unsafe. Having
reviewed the Complaint and supplemental filings sua sponte under 28 U.S.C. § 1915(e), the
Court will require Plaintiff to file an amended complaint.
I. Background
Plaintiff is an immigration detainee at the Otero County Processing Center (OCPC). He
filed a separate 28 U.S.C. § 2241 proceeding challenging his custody, which is pending before the
Hon. Kea Riggs. (Doc. 1) in 26-cv-1169 KWR-KRS. In this civil rights proceeding, Plaintiff
primarily alleges his wallet, cash, a phone, cryptocurrency, and documents were stolen at
detention facilities in Arizona and New Mexico. (Doc. 2) at 7-8. He complained to Officer Soto
at OCPC, who allegedly stated Plaintiff could not prove anything. Id. at 9. Plaintiff alleges
Officer Soto falsified financial statements and claimed the money was placed in Plaintiff’s pocket
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or bag. Id. Plaintiff further alleges that OCPC Officer Keys failed to respond to his hunger strike
and that another officer pressured Plaintiff to sign documents. Id. Plaintiff filed a grievance
regarding the alleged theft of property, but he did not obtain relief. Id. at 12.
After filing the Complaint, Plaintiff filed a supplemental pleading that addresses his
conditions of confinement. (Doc. 4) (Supplement). The Supplement alleges that on January 13,
2026, OCPC Sergeant Perez and Security Officer Jara forced Plaintiff to clean the facility
restroom and shower. Id. at 1. Plaintiff had an allergic reaction to a chemical in the cleaning
supplies, which caused his skin to crack and bleed. Id. Perez and Jara allegedly ignored his
complaints, and at one point, Plaintiff was placed in solitary confinement for refusing cleaning
duties. Id. Plaintiff visited the medical office on January 16, 2026, but it does not appear that
medical providers excused him from cleaning. Id. at 2. Plaintiff alleges he is required to clean
every twelve days and that such duty is torture. Id.
Based on these facts, the Complaint and Supplement seek at least $22 million in damages
under Bivens.1 Plaintiff names the following parties as Defendants: (1) Officer Soto; (2) Officer
Keys; (3) Sergeant Perez; (4) Management and Training Corporation (MTC); (5) OCPC; (6) U.S.
Department of Homeland Security (DHS); (7) Immigration and Customs Enforcement (ICE); and
(8) an unnamed ICE officer. (Doc. 2) at 2; see also Doc. 4 at 2. Plaintiff filed a Motion to
Proceed In Forma Pauperis (Doc. 3), which reflects he cannot afford to prepay the filing fee.
The Court will grant the Motion and conduct an initial review of the Complaint.
1 Plaintiff checked the boxes in the Complaint seeking damages under both Bivens (governing relief from
federal officers) and 42 U.S.C. § 1983 (governing relief from state officers). As discussed below, Section
1983 relief is not available because all defendants are federal officers.
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II. Standards Governing Initial Review
Section 1915(e) of Title 28 requires the Court to conduct a sua sponte review of all in forma
pauperis. The Court must dismiss any complaint that is frivolous, malicious, or fails to state a
claim on which relief may be granted. See 28 U.S.C. § 1915(e). The Court may also dismiss a
complaint sua sponte under Rule 12(b)(6) if “it is patently obvious that the plaintiff could not
prevail on the facts alleged, and allowing [plaintiff] an opportunity to amend [the] complaint would
be futile.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (quotations omitted). The
plaintiff must frame a complaint that contains “sufficient factual matter, accepted as true, to ‘state
a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id.
Because Plaintiff is pro se, his “pleadings are to be construed liberally and held to a less
stringent standard than formal pleadings drafted by lawyers.” Hall, 935 F.2d at 1110. While pro
se pleadings are judged by the same legal standards as others, the Court can overlook the “failure
to cite proper legal authority, … confusion of various legal theories, …, or … unfamiliarity with
pleading requirements.” Id. Moreover, if a pro se inmate complaint fails to state a claim on initial
screening, courts should generally grant leave to amend unless amendment would be futile. Id.
III. Discussion
The Complaint seeks damages from federal officers and agencies in connection with
Plaintiff’s ICE detention. Such claims must be analyzed under Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), which is the “federal analog” to 42
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U.S.C. § 1983 actions. See Ashcroft v, 556 U.S. at 675-76. The Court will set forth the current
Bivens test and determine whether the instant Complaint states a cognizable claim.
A. The Bivens Test
Bivens recognizes an “implied private action for damages against federal officers alleged
to have violated a [person’s] constitutional rights.” Ingram v. Faruque, 728 F.3d 1239, 1243
(10th Cir. 2013). Bivens itself involved a federal officer’s use of excessive force. The Supreme
Court has only expanded the implied cause of action in two additional contexts: (1) a former
congressional staffer’s claim of gender discrimination under the Fifth Amendment, see Davis v.
Passman, 442 U.S. 228, 245-48 (1979), and (2) a federal prisoner’s claim regarding failure to
provide adequate medical care under the Eighth Amendment, see Carlson v. Green, 446 U.S. 14,
16-19 (1980).
After issuing the three decisions, the Supreme Court “has consistently declined to extend
Bivens to new contexts.” Goldey v. Fields, 606 U.S. 942, 945 (2025). While the Supreme Court
has not expressly revoked the cause of action, relief is unavailable if the facts deviate from the
original three circumstances. See Rowland v. Matevousian, 121 F.4th 1237, 1241–42 (10th Cir.
2024) (noting “Bivens is … all but dead”); Silva v. United States, 45 F.4th 1134, 1140 (10th Cir.
2022) (extending Bivens to new factual scenarios or legal claims would be “impermissible in
virtually all circumstances”).
The Tenth Circuit now applies a two-step inquiry to determine whether a Bivens claim is
cognizable. Courts “must first examine whether [Plaintiff’s] case arises in a new Bivens context,
or in other words, analyze whether his case is meaningfully different from the three cases in
which the Court has implied a damages action.” Rowland, 121 F.4th at 1242 (quotations
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omitted). “Second, [courts] must consider whether there are special factors suggesting 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. “If there is even a single reason to pause before
applying Bivens in a new context, a court may not recognize a Bivens remedy.” Id.
B. The Complaint Fails to State a Bivens Claim
The Complaint here fails to state a Bivens claim, for several reasons. First, Plaintiff
appears to sue each Defendant in their official capacity. (Doc. 2) at 3-4 (checking the “official
capacity” boxes under Defendants’ names/addresses). “[A] Bivens claim can be brought only
against federal officials in their individual capacities.” Smith v. United States, 561 F.3d 1090,
1099 (10th Cir. 2009). Such claim “may not be brought against federal ... agents acting in their
official capacities.” Hatten v. White, 275 F.3d 1208, 1210 (10th Cir. 2002). Moreover, plaintiffs
cannot sue federal agencies under Bivens.2 See Smith, 561 F.3d at 1099 (“Bivens claims cannot
be asserted directly against … federal agencies”). The Complaint and Supplement are therefore
subject to dismissal on that basis.
Alternatively, assuming any federal officers were named in their individual capacities, the
facts are insufficient to show Plaintiff is entitled to relief under Bivens. Plaintiff alleges federal
officials stole his property and money; falsified financial statements; and pressured him to sign
certain documents. Such claims do not fall within the parameters of the “three cases in which the
[Supreme] Court has implied a damages action.” Rowland, 121 F.4th at 1242; see also Crosby v.
Complex, 2024 WL 4189363, at *5 (S.D. Ind. Sept. 12, 2024) (claim “related to theft or other
2 Plaintiff also names MTC, which may be a private company who is performing the function of a federal
entity. Plaintiff has not identified how MTC is involved in the alleged wrongdoing or whether he asserts
claims under Bivens or some other theory. Plaintiff should clarify these points in the amended complaint.
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deprivation of [plaintiff’s] property would present a new Bivens context”); Arrick v. Fed. Bureau
of Prisons, 2019 WL 8301052, at *18 (N.D.W. Va. Dec. 10, 2019) (rejecting Bivens claim based
on theft of property). As noted above, the Supreme Court has only recognized Bivens actions
involving: (1) excessive force; (2) gender discrimination; and (3) deliberate indifference to
serious medical needs. See Williams v. Keller, 2021 WL 4486392 at *2 (10th Cir. Oct. 1, 2021).
Plaintiff also alleges federal officials failed to respond to his hunger strike; forced him to
use cleaning supplies that caused an allergic reaction; failed to treat his skin symptoms; and were
generally negligent in providing medical care. Construed liberally, these allegations implicate
deliberate indifference to medical needs. Bivens relief is not automatically available in all
deliberate-indifference cases, however. “A claim may arise in a new context even if it is based on
the same constitutional provision as a claim in a case in which a damages remedy was previously
recognized.” Hernandez v. Mesa, 589 U.S. 93, 102 (2020). Given the “expressed caution about
extending the Bivens remedy,” even “significant parallels to one of the [Supreme] Court’s
previous Bivens cases” may not be enough to show that a case arises in the same context. Ziglar
v. Abbasi, 582 U.S. 120, 147 (2017). “Small” differences can “easily satisf[y]” the “new-context
inquiry.” Id. at 149.
The instant Complaint does not contain enough facts to conclude that Plaintiff’s claims
arise in the same context as Carlson (i.e., the Supreme Court case involving deliberate
indifference). In Carlson, the federal inmate died after prison officials acted against a doctor’s
orders; refused to provide care for an asthma attack; “[a]dministered contra-indicated drugs,”
which made the attack worse; and used a broken respirator. Rowland, 121 F.4th at1243
(summarizing the facts of Carlson). The Tenth Circuit has found that the failure to treat a
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different medical condition does not state a viable Bivens claim, particularly where prison
officials did not make repeated, serious errors like the prison officials in Carlson. Id. The Court
also notes that, even if Plaintiff could bring a viable Bivens claim, the current facts do not show
any individual federal official knowingly disregarded a serious risk of harm. See Lance v.
Morris, 985 F.3d 787, 793 (10th Cir. 2021) (deliberate indifference occurs where the medical
need was sufficiently serious and each named “defendant was aware of a substantial risk of
serious harm and chose to disregard that risk”).
For each alternative reason above, the Complaint and Supplement fail to state a
cognizable claim under Bivens. To the extent Plaintiff intends to seek damages based on his
immigration detention, relief is also unavailable. See Mirmehdi v. United States, 689 F.3d 975
(9th Cir. 2011) (finding no Bivens claim for constitutionally invalid immigration detention);
Alvarez v. U.S. Immigr. & Customs Enf’t, 818 F.3d 1194, 1212–13 (11th Cir. 2016) (“no Bivens
remedy is available when a plaintiff claims that he was unconstitutionally detained after being
ordered removed by an immigration judge”); De La Paz v. Coy, 786 F.3d 367, 375 (5th Cir.
2015) (Bivens does not extend to “claims arising from civil immigration ... detention[ ], other than
those alleging unconstitutionally excessive force.”). Plaintiff must raise all challenges to his
immigration custody in the pending 28 U.S.C. § 2241 proceeding before Judge Riggs.
As to the civil rights claims, the Tenth Circuit counsels that courts should ordinarily give
pro se parties an opportunity to remedy defects in their pleadings. See Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). The Court will grant leave to file a single, amended civil complaint
within thirty (30) days of entry of this Order. Any amended complaint must “make clear exactly
who is alleged to have done what to whom, to provide each individual with fair notice as to the
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basis of the claims against him or her.” Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir.
2008). If Plaintiff fails to timely amend, or if he files another complaint that fails to state a
cognizable claim, the Court may dismiss this case without further notice. For clarity, such dismissal
will have no impact on Plaintiff’s ability to prosecute his separate Section 2241 action.
IT IS ORDERED:
1. Within thirty (30) days of entry of this Order, Plaintiff shall file a single amended
civil rights complaint.
2. Plaintiff’s Motion to Proceed In Forma Pauperis (Doc. 3) is granted.
/s/Kenneth J. Gonzales___________________
CHIEF UNITED STATES DISTRICT JUDGE
• Please note that this document has been
electronically filed. To verify its authenticity,
please refer to the Digital File Stamp on the
NEF (Notice of Electronic Filing)
accompanying this document. Electronically
filed documents can be found on the Court’s
PACER public access system.
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