Oliva v. Nivar

• Decision Date: 02 September 2020
• Docket Number: No. 19-50795,19-50795
• Citation: 973 F.3d 438
• Parties: Jose L. OLIVA, Plaintiff-Appellee, v. Mario J. NIVAR; Hector Barahona; Mario Garcia, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

973 F.3d 438

Jose L. OLIVA, Plaintiff-Appellee,

v.Mario J. NIVAR; Hector Barahona; Mario Garcia, Defendants-Appellants.

No. 19-50795

United States Court of Appeals, Fifth Circuit.

FILED September 2, 2020

Joe A. Spencer, Jr., Esq., Law Office of Joe A. Spencer, El Paso, TX, for Plaintiff-Appellee

James Kerby Jopling, El Paso, TX, for Defendant-Appellant Mario J. Nivar

Louis Elias Lopez, Jr., Esq., Law Office of Louis E. Lopez, El Paso, TX, for Defendant-Appellant Hector Barahona

Gabriel Steven Perez, Attorney, Ortega McGlashan Hicks & Perez, P.L.L.C., El Paso, TX, for Defendant-Appellant Mario Garcia

Before Smith, Ho, and Oldham, Circuit Judges.

Andrew S. Oldham, Circuit Judge:

The question presented is whether to extend Bivens to a new context. The district court said yes. We say no. So we reverse and remand with instructions to dismiss the claims against the federal officers.

I.

On February 16, 2016, Jose Oliva attempted to enter a Veterans Affairs ("VA") hospital in El Paso, Texas. The entrance to the hospital was protected by VA police and metal detectors. While Oliva stood in line for the metal detector, he spoke with one of the officers. Somehow that conversation escalated into a physical altercation. That ended when VA police wrestled Oliva to the ground in a chokehold and arrested him. Oliva exhausted his administrative remedies and then sued the federal officers for damages under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). He also brought claims against the United States under the Federal Tort Claims Act ("FTCA").

Oliva offered an affidavit with his version of the facts. Oliva stated: "Upon entry into the [hospital], I emptied my pockets and placed all items into an inspection bin as required." VA Officer Nivar asked for identification, and Oliva "calmly explained ... that it was in the inspection bin with [his] other personal items." Oliva says he complied with all instructions from the VA police. Then, when Oliva tried to walk through the metal detector, three VA police officers (Nivar, Barahona, and Garcia) attacked him without provocation.

The VA police officers offered a very different version of the facts. Officers Nivar, Barahona, and Garcia submitted materially identical affidavits. They stated that Oliva "attempted to enter the [hospital] without first clearing security." The officers further averred that Oliva did not clear security because he failed to show identification.

Security cameras captured the altercation on video, so we consider "the facts in the light depicted by the videotape." Scott v. Harris , 550 U.S. 372, 381, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). The video is inconsistent with Oliva's account of the facts in certain respects. For example, the video shows that Oliva did not place "all" of his items in the inspection bin. He's plainly holding something in his hand when he attempts to walk through the metal detector. Moreover, Officer Nivar approaches Oliva with a pair of handcuffs before Oliva attempts to walk through the metal detector. Thus, the video undermines (if not contradicts) Oliva's statement that "[a]t no point before I was attacked, was I told that I was going to be arrested or detained."

After the altercation, Oliva sought medical treatment. Oliva had two shoulder surgeries, and he also sought treatment for post-traumatic stress disorder due to nightmares and anxiety stemming from this event. Relying on Bivens for his cause of action against the officers, Oliva sought money damages for violations of, inter alia , the Fourth Amendment.¹

With respect to the Fourth Amendment claim, the district court held that "this case does not present a new Bivens context." In the district court's view, this case is just like Bivens because both cases involved excessive-force, unreasonable-seizure claims. Therefore, the district court held that Oliva has the right to recover damages under Bivens if his claims are not barred by qualified immunity. At summary judgment, the district court agreed with Oliva that his claims against the officers are not so barred. The officers timely appealed.

Our review is de novo . See Garcia de la Paz v. Coy , 786 F.3d 367, 371 (5th Cir. 2015). Our "jurisdiction over qualified immunity appeals extends to elements of the asserted cause of action that are directly implicated by the defense of qualified immunity, including whether to recognize new Bivens claims." Ibid. (quotation omitted).

II.

In cases like this one, the Supreme Court has said "the Bivens question" is "antecedent" to questions of qualified immunity. Hernandez v. Mesa , ––– U.S. ––––, 137 S. Ct. 2003, 2006, 198 L.Ed.2d 625 (2017). Courts confronting Bivens claims generally "must ask two questions. First, do [the plaintiff's] claims fall into one of the three existing Bivens actions?

Second, if not, should we recognize a new Bivens action here?" Cantú v. Moody , 933 F.3d 414, 422 (5th Cir. 2019). We say no and no.

A.

Bivens was the product of an "ancien regime " that freely implied rights of action. Ziglar v. Abbasi , ––– U.S. ––––, 137 S. Ct. 1843, 1855, 198 L.Ed.2d 290 (2017) (quoting Alexander v. Sandoval , 532 U.S. 275, 287, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001) ). That regime ended long ago. Id. at 1855–56 ; see also Sandoval , 532 U.S. at 287, 121 S.Ct. 1511 ("Raising up causes of action where a statute has not created them may be a proper function for common-law courts, but not for federal tribunals." (quotation omitted)). Today, Bivens claims generally are limited to the circumstances of the Supreme Court's trilogy of cases in this area: (1) manacling the plaintiff in front of his family in his home and strip-searching him in violation of the Fourth Amendment, see Bivens , 403 U.S. at 389–90, 91 S.Ct. 1999 ; (2) discrimination on the basis of sex by a congressman against a staff person in violation of the Fifth Amendment, see Davis v. Passman , 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979) ; and (3) failure to provide medical attention to an asthmatic prisoner in federal custody in violation of the Eighth Amendment, see Carlson v. Green , 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980).

Virtually everything else is a "new context." See Abbasi , 137 S. Ct. at 1865 (explaining that "the new-context inquiry is easily satisfied"). As the Supreme Court has emphasized, our "understanding of a ‘new context’ is broad." Hernandez v. Mesa , ––– U.S. ––––, 140 S. Ct. 735, 743, 206 L.Ed.2d 29 (2020). That's because "even a modest extension" of the Bivens trilogy "is still an extension." Abbasi , 137 S. Ct. at 1864. And to put it mildly, extending Bivens to new contexts is a "disfavored judicial activity." Id. at 1857 (quotation omitted).

The district court contravened these limitations. It said, "[l]ike Bivens , this case involves allegations that Defendants ... violated [Oliva's] Fourth Amendment right to be free of excessive force." That's true but irrelevant. "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.’ " Cantú , 933 F.3d at 422. Indeed, it is not enough even if "a plaintiff asserts a violation of the same clause of the same amendment in the same way ." Ibid.

Instead, the question is whether this "case is different in a meaningful way from previous Bivens cases decided by [the Supreme] Court." Abbasi , 137 S. Ct. at 1859. If so, "then the context is new." Ibid. As the Supreme Court has explained:

Without endeavoring to create an exhaustive list of differences that are meaningful enough to make a given context a new one, some examples might prove instructive. A case might differ in a meaningful way because of the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider.

Id. at 1859–60.

This case differs from Bivens in several meaningful ways. This case arose in a government hospital, not a private home. Cf. Bivens , 403 U.S. at 389, 91 S.Ct. 1999. The VA officers were manning a metal detector, not making a warrantless search for narcotics. Cf. ibid. Judicial guidance varies across these contexts. See Cantú , 933 F.3d at 423 (" ‘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."). The dispute that gave rise to Oliva's altercation involved the hospital's ID policy, not a narcotics investigation. Cf. Bivens , 403 U.S. at 389, 91 S.Ct. 1999. The cases thus involve different legal mandates. Cf. Loumiet v. United States , 948 F.3d 376, 382 (D.C. Cir. 2020) (Katsas, J.) (contrasting enforcement of federal banking laws with enforcement of federal narcotics laws in new-context analysis). The VA officers did not manacle Oliva in front of his family or strip-search him. Cf. Bivens , 403 U.S. at 389, 91 S.Ct. 1999. Contrariwise the narcotics officers did not place Webster Bivens in a chokehold. See ibid. In short, Oliva's "claim involves different conduct by different officers from a different agency." Cantú , 933 F.3d at 423. We could go on, but the point should be clear: the context is new.

B.

That leads to the second question: whether to engage in the "disfavored judicial activity" of recognizing a new Bivens action. Abbasi , 137 S. Ct. at 1857 (quotation omitted). For decades, the Supreme Court has "consistently refused to extend Bivens...