Ponce v. United States

CourtUnited States District Courts. 5th Circuit. Western District of Texas
PartiesOSVALDO CAMBA PONCE, Plaintiff, v. UNITED STATES OF AMERICA and DEREK B. VOLMERING, Individually, Defendants.
Docket NumberPE:22-CV-00012-DC-DF
Decision Date21 February 2023



No. PE:22-CV-00012-DC-DF

United States District Court, W.D. Texas, Pecos Division

February 21, 2023




BEFORE THE COURT is Defendant Derek B. Volmering's (“Volmering”) Motion to Dismiss.[1] This case is before the undersigned United States Magistrate Judge through a standing order of referral pursuant to 28 U.S.C. § 636, and Appendix C of the Local Court Rules for the Assignment of Duties to United States Magistrate Judges. After due consideration, the undersigned RECOMMENDS that the Motion to Dismiss be GRANTED IN PART.[2]

I. Background

On or about April 30, 2021, Plaintiff Osvaldo Camba Ponce (“Plaintiff”) crossed into the United States from Mexico near Van Horn, Texas. Volmering, an agent with the United States Border Patrol (“Border Patrol”), was encountered and apprehended Plaintiff through the use of a canine unit reportedly named “Cappy,” “Cappi,” or a similar iteration.[3]

Plaintiff alleges the canine-assisted apprehension caused him various physical injuries. On August 31, 2022, Plaintiff filed his First Amended Complaint, which is the live pleading before the Court. He asserts claims against both the United States of America (“United States”) and Volmering. Specifically, he argues that Volmering used unlawful force in apprehending him in violation of his


Fourth Amendment rights under Bivens v. Six Unnkown Named Agents of Federal Bureau of Narcotics.[4] Plaintiff also presents against Volmering a state law claim for battery.

Volmering filed the Motion to Dismiss on November 10, 2022. Plaintiff has not responded. The United States filed a Notice of Substitution of the United States of America (hereafter, “Notice of Substitution”) pertaining to Plaintiff's state law battery claim on November 10, 2022.[5]Accordingly, this matter is now ripe for disposition.

II. Legal Standard

When a defendant files a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the trial court must assess whether a complaint states a plausible claim for relief.[6] The court must accept “all well-pleaded facts in the complaint as true and viewed in the light most favorable to the plaintiff.”[7] “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.”[8]

On the other hand, if the complaint only offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action,” dismissal is appropriate.[9] “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”[10] The court should dismiss the complaint if it can only infer the mere possibility of misconduct, or if the plaintiff has only alleged he is entitled to relief rather than stating a claim that is “plausible on its face.”[11]

III. Analysis

Plaintiff asserts two separate claims against the United States pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346. As to Volmering, Plaintiff presents a claim for a violation


of his Fourth Amendment right “to be free from unreasonable seizures by using excessive and unreasonable force,” as well as a claim based on state law battery. The United States requests that it be substituted for Volmering as to the battery claim. The battery claim will be addressed first.

A. State Law Battery Claim

In Plaintiff's state law battery claim, he argues Volmering “intentionally caused harmful or offensive contact with [him]” by (1) “intentionally releasing an unmuzzled Border Patrol canine to chase and apprehend a helpless, unarmed person”; (2) “verbally commanding this specially trained law enforcement tool to attack and maul a helpless, unarmed person”; and (3) “allowing this specially trained law enforcement tool to continue attacking and mauling an apprehended or subdued person.” These actions, Plaintiff maintains, caused him to suffer severe injuries. He claims Volmering is individually liable for this alleged battery.[12]

Volmering argues the state law battery claim against him should be dismissed pursuant to the Westfall Act. He insists the United States should be substituted for Volmering according to a since-filed Notice of Substitution.[13]

The Westfall Act, codified at 28 U.S.C. § 2679, provides in pertinent part that
[W]hen a federal employee is named in a tort suit, the Attorney General may certify that the employee was ‘acting within the scope of his office or employment at the time of the incident out of which the claim arose,' which will cause the federal employee to be dismissed and the United States substituted as the defendant.[14]

The Westfall Act thus “accords federal employees absolute immunity from common-law tort claims arising out of acts they undertake in the course of their official duties.”[15] Following the United States' substitution, the resulting litigation is thereafter governed by the FTCA.[16] All that is needed is


a scope-of-employment certification by a qualified individual. This certification is subject to judicial review.[17]

In this case, the United States seeks to certify that, at the time of the incidents giving rise to the alleged battery, Volmering “was acting within the course and scope of his employment as an employee with the United States Customs and Border Protection.” This certification is signed by Mary Kruger, Chief for the Civil Division of the Office of the United States Attorney for the Western District of Texas.[18] Pursuant to regulation, “[t]he United States Attorney for the district where the civil action or proceeding is brought . . . is authorized to make the statutory [scope-of-employment] certification.”[19] Ms. Kruger therefore is a proper individual to provide the Westfall Act certification.

Because Volmering was acting within the course and scope of his federal employment, and a proper individual has moved for certification of this fact, the Westfall Act is applicable.[20] Therefore, the substitution of the United States for Volmering is proper. Accordingly, the undersigned RECOMMENDS that the United States a be SUBSTITUTED for Volmering as to Plaintiff's state law battery claim, and that the state law battery claim be DISMISSED as against Volmering.

B. Bivens Claim

Plaintiff also asserts a Bivens claim against Volmering. Volmering argues that existing Bivens remedies do not permit the instant cause of action. In the alternative, Volmering contends the facts of this case do not warrant this Court's recognition of a new Bivens remedy.[21]

1. Background of Bivens

In 1971, the Supreme Court of the United States encountered Bivens. There, the petitioner was arrested in his apartment for alleged narcotics violations by agents of the Federal Bureau of


Narcotics “acting under claim of federal authority.” The respondents, the agents, had strip-searched him and manacled him in front of and threatened to arrest his family. The petitioner sued the respondents based upon a lack of probable cause or a valid warrant, and asserted that “unreasonable force was employed in making the arrest.” The petitioner sought $15,000 worth of damages from each agent.[22]

The lower courts dismissed the petitioner's complaint “on the ground . . . that it failed to state a cause of action.” On appeal to the Supreme Court, the respondents argued that the petitioner “may obtain money damages to redress [an] invasion of [the petitioner's Fourth Amendment] rights only by an action in tort, under state law, in the state courts.”

The Court first observed that the Fourth Amendment “guarantees to citizens . . . the absolute right to be free from unreasonable searches and seizures carried out by virtue of federal authority.” Affirming prior precedent, the Court noted that “where federally protected rights have been invaded, it has been the rule from the beginning that courts will . . . adjust their remedies so as to grant the necessary relief.”[23]

The Court concluded that “damages may be obtained for injuries [for] a violation of the Fourth Amendment by federal officials.” The Court framed the analysis to inquire whether a plaintiff, “if he can demonstrate an injury [based on a] violation by federal agents of his Fourth Amendment rights, is entitled to redress his injury through a particular remedial mechanism normally available in the federal courts.” The Court determined that this unprecedented remedy was warranted since the case involved “no special factors counseling hesitation in the absence of affirmative action by Congress.” Recognizing that the typical source of remedies is congressional action, the Court finally acknowledged there was “no explicit congressional declaration” that the appropriate remedy


would be something other than damages.[24] Thus, for the first time, the Court had, of its own extra-congressional volition “under general principles of federal jurisdiction,”[25] authorized a damages action against federal officials for a violation of a plaintiff's constitutional rights.[26]

2. Modern Bivens

In the fifty years since its release, the Supreme Court has viewed Bivens as “the product of an ‘ancien regime' that freely implied rights of action.”[27] The Bivens [regime] is well-settled law in its own context, but expanding the Bivens remedy is now considered a ‘disfavored' judicial activity.”[28]This regime, as the United States Court of Appeals for the Fifth Circuit observes, “ended long ago.”[29]Nevertheless, Bivens and its progeny remain good law.[30]

As it stands, Bivens claims are limited to the contexts of the Supreme Court's Bivens trilogy:
(1) manacling the

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