Espinoza v. Gulickson

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF OKLAHOMA
TRENTON ESPINOZA, )
)
Plaintiff, )
)
v. ) Case No. CIV-25-1149-HE
)
OFFICER C. GULICKSON, et al., )
)
Defendants. )
REPORT AND RECOMMENDATION
Plaintiff Trenton Espinoza, a federal prisoner appearing pro se, seeks relief for
alleged civil rights violations while he was in custody at the Federal Correctional Institution
(“FCI”)-El Reno. Doc. 1 (“Compl.”). Also pending before the Court are Plaintiff’s
Application for Fee Waiver, Doc. 2; Motion for Copies, Doc. 5; and Motion for
Recruitment of Counsel, Doc. 6.
This matter has been referred by United States District Judge Joe Heaton to the
undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C.
§ 636(b)(1)(B)-(C). For the reasons set forth below, the undersigned recommends
dismissing Plaintiff’s Complaint, which would moot the pending motions.
I. Plaintiff’s Claims
Plaintiff brings suit against Defendant Officer C. Gulickson, an officer employed
by the Federal Bureau of Prisons (“BOP”) at FCI-El Reno, alleging that Defendant
Gulickson assaulted him. Compl. at 1-4. Plaintiff further alleges that Defendant Gulickson
falsified a report about the assault, had other FCI-El Reno employees issue paperwork to
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revoke Plaintiff’s good time credits, and sent false paperwork to federal authorities in an
attempt to have him criminally charged. Id. at 4-5.
Plaintiff also sues “a number of” unnamed BOP employees at FCI-El Reno, alleging
they failed to train and supervise Defendant Gulickson, failed to protect Plaintiff from
Defendant Gulickson’s assault, retaliated against Plaintiff with or on behalf of Defendant
Gulickson, and covered up evidence of the assault. Id. at 1-2, 5-7. The undersigned
liberally construes Plaintiff’s Complaint as bringing claims against Defendants in their
official and personal capacities. For relief, Plaintiff seeks five million dollars “against each
Defendant joint and several, personally and officially.” Id. at 8.
II. Screening
When a prisoner seeks relief against a governmental entity or an officer or employee
of a governmental entity, the Court must screen the complaint and dismiss any part that is
frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks
monetary relief against a defendant immune from such relief. 28 U.S.C. § 1915A(a)-(b).
In evaluating whether a complaint adequately states a claim, the Court must “accept
all well-pleaded allegations as true and construe them in the light most favorable to the
plaintiff.” Requena v. Roberts, 893 F.3d 1195, 1204-05 (10th Cir. 2018) (citation
modified) (discussing standard of review for failure to state a claim under § 1915A(b)(1)).
“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) (citation
modified) (quoting Bell Atl. 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
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reasonable inference that the defendant is liable for the misconduct alleged.” Id. In
addition, the Court “ha[s] an independent obligation to determine whether subject-matter
jurisdiction exists, even in the absence of a challenge from any party.” Arbaugh v. Y&H
Corp., 546 U.S. 500, 514 (2006).
“A pro se litigant’s pleadings are to be construed liberally and held to a less stringent
standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991). The Court will not, however, provide a plaintiff with arguments or act as
his advocate. Id.
III. Analysis
A. Official capacity claims
Each Defendant named in this matter is alleged to be an employee of the BOP, a
federal agency. See Compl. at 1-2. Plaintiff specifies that he brings suit against them under
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
Compl. at 1. However, “a Bivens claim can be brought only against federal officials in
their individual capacities. Bivens claims cannot be asserted directly against the United
States [or] federal officials in their official capacities.” Smith v. United States, 561 F.3d
1090, 1099 (10th Cir. 2009). Indeed, Plaintiff’s suit against federal employees in their
official capacities is construed as an action against the United States. Kentucky v. Graham,
473 U.S. 159, 166 (1985). Federal courts lack subject matter jurisdiction over claims
against the United States where the United States has not waived its sovereign immunity.
Iowa Tribe of Kan. and Neb. v. Salazar, 607 F.3d 1225, 1232 (10th Cir. 2010). Plaintiff
has not identified any waiver.
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Accordingly, Plaintiff’s official capacity claims against Defendants should be
dismissed without prejudice for lack of subject matter jurisdiction. See, e.g., Mocek v. City
of Albuquerque, 813 F.3d 912, 932 (10th Cir. 2015) (affirming dismissal of official
capacity claims under Bivens against federal officials “for lack of jurisdiction because
[plaintiff’s] pleadings never identified a federal waiver of sovereign immunity”); Watson
v. Hollingsworth, 741 F. App’x 545, 551 (10th Cir. 2018) (affirming dismissal of official
capacity claims against federal officials because “sovereign immunity deprived the district
court of jurisdiction”); see also 28 U.S.C. § 1915A(b)(2) (instructing a court to dismiss
upon screening any portion of the complaint that “seeks monetary relief from a defendant
who is immune from such relief”).
B. Individual capacity claims
1. Bivens remedies
The Supreme Court in Bivens “recognized for the first time an implied private action
for damages against federal officers alleged to have violated a citizen’s constitutional
rights.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001). However, “because
implied causes of action are disfavored, the Court has been reluctant to extend Bivens
liability ‘to any new context or new category of defendants.’” Iqbal, 556 U.S. at 675
(quoting Malesko, 534 U.S. at 68) (citation modified). The Supreme Court has recognized
only three contexts for Bivens claims:
• Fourth Amendment violations where a private citizen is arrested and
searched without probable cause, Bivens, 403 U.S. at 397;
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• Fifth Amendment equal protection violations where a federal
employee is discriminated against based on gender, Davis v. Passman,
442 U.S. 228 (1979); and
• Eighth Amendment violations of the Cruel and Unusual Punishment
Clause where a prisoner receives inadequate medical care, Carlson v.
Green, 446 U.S. 14 (1980).
“When asked to extend Bivens, [courts] engage in a two-step inquiry.” Hernandez
v. Mesa, 589 U.S. 93, 102 (2020). First, a court must determine if the claim “arises in a
new context.” Id. (citation modified). Whether the claim arises in a new context queries
whether the case “is different in a meaningful way” from the cases in which the Supreme
Court has recognized a Bivens remedy. Ziglar v. Abbasi, 582 U.S. 120, 139 (2017).
Second, if a claim arises in a new context, a court must consider “whether there are any
special factors that counsel hesitation about granting the extension.” Hernandez, 589 U.S.
at 102 (citation modified). With any special-factors analysis, a court considers “who
should decide whether to provide for a damages remedy, Congress or the courts?” Ziglar,
582 U.S. at 135 (citation modified).
Recognizing a vast array of scenarios that would result in a new context and
consideration of factors “that might counsel hesitation,” the Supreme Court has recently
explained that the two-step Bivens inquiry “often resolve[s] to a single question: whether
there is any reason to think that Congress might be better equipped to create a damages
remedy.” Egbert v. Boule, 596 U.S. 482, 492-93 (2022) (first citation modified). “And the
circumstances in which the answer to the question is ‘no’ appears to comprise a null set.”
Logsdon v. U.S. Marshal Serv., 91 F.4th 1352, 1355 (10th Cir. 2024) (citing Egbert, 596
U.S. at 503 (Gorsuch, J., concurring)). After Egbert, there is “no doubt that expanding
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Bivens is not just a disfavored judicial activity, it is an action that is impermissible in
virtually all circumstances.” Silva v. United States, 45 F.4th 1134, 1140 (10th Cir. 2022)
(citation modified).
2. Excessive force
Plaintiff alleges that Defendant Gulickson assaulted him, which the undersigned
construes as a claim of excessive force under the Eighth Amendment. Compl. at 2-4. The
Supreme Court has recently considered a case in which a plaintiff sued several BOP
employees for damages, alleging they used excessive force against him in violation of the
Eighth Amendment. Goldey v. Fields, 606 U.S. 942 (2025). The Court emphasized that,
in addition to the original Fourth Amendment context in Bivens, it has recognized a Bivens
claim in only two additional contexts—“neither of which was an Eighth Amendment
excessive-force claim.” 606 U.S. at 942. As such, the Court determined the “case arises
in a new context.” Id. at 944. Moving to the second step, the Court determined that
“‘special factors’ counsel against recognizing an implied Bivens cause of action for Eighth
Amendment excessive-force violations.” Id. Therefore, the Court “declined to extend
Bivens” to the context of an Eighth Amendment claim for excessive force. Id. at 945. This
Court should do the same. The undersigned recommends dismissal of Plaintiff’s excessive-
force claim against Defendant Gulickson for failure to state a claim upon which relief can
be granted.
3. Retaliation
Plaintiff alleges unnamed BOP employees retaliated against him with or on behalf
of Defendant Gulickson “for trying to complain about what Gulickson did.” Compl. at 5-
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6; see also id. at 2, 7. The undersigned construes Plaintiff’s allegations as a First
Amendment retaliation claim. In Egbert, the Supreme Court considered whether to extend
Bivens to a First Amendment retaliation claim. It first determined that, because it had never
previously held that Bivens extends to First Amendment claims, the retaliation claim arose
in a new context. 596 U.S. at 498. It then considered whether Congress, rather than the
courts, was better suited to authorize a damages remedy, and determined “there [were]
many reasons to think [so].” Id. at 499 (citation modified). The Supreme Court therefore
ruled the court of appeals that had extended Bivens to a retaliation claim should not have
done so. As such, this Court should not extend Bivens to Plaintiff’s retaliation claim, and
the undersigned recommends dismissing Plaintiff’s retaliation claim for failure to state a
claim upon which relief can be granted.
4. Additional Eighth Amendment claims
Related to the alleged assault, Plaintiff also alleges that Defendant Gulickson:
• falsified a report about the assault,
• had other FCI-El Reno employees issue paperwork to revoke
Plaintiff’s good time credits, and
• sent false paperwork to federal authorities in an attempt to have him
criminally charged.
Compl. at 4-5. The undersigned understands these additional claims to allege Defendant
Gulickson took actions intended to cover up the alleged assault. Further, with respect to
the other BOP employees, Plaintiff alleges they:
• failed to train and supervise Defendant Gulickson,
• failed to protect Plaintiff from Defendant Gulickson’s alleged assault,
and
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• covered up evidence and improperly investigated Defendant
Gulickson’s alleged assault.
Id. at 2, 5-7. The undersigned liberally construes these additional claims as alleged
violations of Plaintiff’s Eighth Amendment rights.
The Court must consider whether these claims present a new context. Plaintiff’s
above-referenced claims of Defendant Gulickson’s cover-up and actions by other BOP
employees arise in a new context outside of the three, limited contexts for Bivens claims.
See discussion, supra, at Section III.B.1; Egbert, 596 U.S. at 490-91 (listing the only three
contexts in which Bivens claims have been permitted). Thus, the Court must consider
whether there are any special factors that counsel hesitation in the judicial creation of a
damages remedy. The undersigned finds there are at least two.
First, “Congress is better positioned to create remedies” in the context of prisoner
litigation. Egbert, 596 U.S. at 494. As the Supreme Court noted in Ziglar, when Congress
passed the Prison Litigation Reform Act of 1995, it made “comprehensive changes to the
way prisoner abuse claims must be brought in federal court.” 528 U.S. at 148. “So it seems
clear that Congress had specific occasion to consider the matter of prisoner abuse and to
consider the proper way to remedy those wrongs.” Id. The Supreme Court determined
that “legislative action suggesting that Congress does not want a damages remedy is itself
a factor counseling hesitation.” Id.; see also Goldey, 606 U.S. at 944 (finding as a special
factor counseling against extending Bivens that “Congress has actively legislated in the
area of prisoner litigation but has not enacted a statutory cause of action for money
damages”).
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Second, “the Government already has provided alternative remedies that protect
plaintiffs.” Egbert, 596 U.S. at 494. Plaintiff is a federal prisoner in BOP custody and, as
such, has access to the BOP’s Administrative Remedy Program. The Supreme Court has
recognized that the existence of the Administrative Remedy Program “counsels against
allowing Bivens suits even if such procedures are not as effective as an individual damages
remedy.” Goldey, 606 U.S. at 944-45; accord Malesko, 534 U.S. at 74 (recognizing BOP
inmates “have full access to remedial mechanisms established by the BOP, including . . .
grievances filed through the BOP’s Administrative Remedy Program’’); Silva, 45 F.4th at
1141 (finding “the availability of the BOP’s Administrative Remedy Program offers an
independently sufficient ground to foreclose [p]laintiff’s Bivens claim”).
Both reasons foreclose recognizing a Bivens remedy for Plaintiff’s additional Eighth
Amendment claims. See Silva, 45 F.4th at 1141 (emphasizing the Supreme Court’s
recognition of the two discussed reasons as “independent reasons” for disposal of Bivens
claims (quoting Egbert, 596 U.S. at 494)). Therefore, the Court should not extend Bivens
to these claims. The undersigned recommends dismissal of Plaintiff’s additional Eighth
Amendment claims for failure to state a claim upon which relief can be granted.
5. Conclusion
Supreme Court precedent forecloses Plaintiff’s Bivens claims for excessive force
and retaliation, and his additional Eighth Amendment claims would require an
impermissible expansion of Bivens. Accordingly, all of Plaintiff’s individual capacity
claims, brought under Bivens, should be dismissed for failure to state a claim upon which
relief can be granted. See Straker v. Stancil, No. 23-1311, 2024 WL 4381106, at *2-3 (10th
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Cir. Oct. 3, 2024) (affirming district court’s dismissal of plaintiff’s suit for failure to state
a claim when he brought Bivens claims that were either precluded by Supreme Court
precedent or would require an impermissible expansion of Bivens); see also 28 U.S.C.
§ 1915A(b)(1) (instructing a court to dismiss upon screening any portion of the complaint
that “fails to state a claim upon which relief may be granted”).
IV. Additional motions
In addition to the Complaint, Plaintiff has filed an Application for Fee Waiver,
Doc. 2; Motion for Copies, Doc. 5; and Motion for Recruitment of Counsel, Doc. 6.
Adoption of this recommendation to dismiss the Complaint would moot these pending
motions.
V. Recommendation and Notice of Right to Object
For the foregoing reasons, the undersigned recommends that the Court DISMISS
without prejudice Plaintiff’s Complaint in its entirety. Specifically, the undersigned
recommends the Court dismiss Plaintiff’s official capacity claims for lack of subject matter
jurisdiction and individual capacity claims for failure to state a claim upon which relief can
be granted. Adoption of this recommendation would moot Plaintiff’s pending motions,
Docs. 2, 5, 6.
Plaintiff is advised of his right to object to this Report and Recommendation. See
28 U.S.C. § 636. Any objection must be filed with the Clerk of Court not later than
December 1, 2025. See id. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to object timely
waives the right to appellate review of the factual and legal issues addressed in this Report
and Recommendation. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
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This Report and Recommendation disposes of all issues referred to the undersigned
Magistrate Judge in this matter.
ENTERED this 6th day of November, 2025.
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