Mohamed Barry v. David Anderson ( 2023 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 22-3098
_____________
MOHAMED BARRY,
Appellant
v.
DAVID ANDERSON, in his official capacity as Acting Deputy Director of the U.S.
Marshals Service; KEVIN MCALEENAN, in his official capacity as Acting United
States Secretary of Homeland Security; DEPORTATION OFFICER RODY ZAMAR,
Badge No. 4082; DONALD W. WASHINGTON, in his office capacity as Director of the
U.S. Marshals Service; Unknown Deportation Officer #1; Unknown Deportation Officer
#2; Unknown Assistant Field Officer Director #1; Unknown Assistant Field Officer
Director #2; Unknown U.S. Marshals Regional Fugitive Task Force Officer #1;
Unknown U.S. Marshals Regional Fugitive Task Force Officer #2; Unknown U.S.
Marshals Regional Fugitive Task Force Officer #3; Unknown U.S. Marshals Regional
Fugitive Task Force Officer#4; Unknown Fugitive Task Force Officer #5; Unknown U.S.
Marshals Regional Fugitive Task Force Officer #6; Unknown U.S. Marshals Regional
Fugitive Task Force Officer#7; Unknown U.S. Marshals Regional Fugitive Task Force
Officer #8; Unknown U.S. Marshals Regional Fugitive Task Force Officer #9; Unknown
U.S. Marshals Regional Fugitive Task Force Officer #10
_____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 2-19-cv-10216)
District Judge: Honorable Evelyn Padin
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Argued: November 15, 2023
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Before: CHAGARES, Chief Judge, MATEY and FUENTES, Circuit Judges
(Filed: December 6, 2023)
Rasheedah Terry [ARGUED]
409 Halsey Street
Newark, NJ 07102
Counsel for Plaintiff-Appellant Mohamed Barry
Matthew J. Mailloux [ARGUED]
Office of the United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102
J. Andrew Ruymann
Office of the United States Attorney
402 E State Street
Suite 430
Trenton, NJ 08608
Counsel for Defendant-Appellee Rody Zamar
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OPINION *
____________
CHAGARES, Chief Judge.
Mohamed Barry appeals from the District Court’s grant of summary judgment to
defendant Rody Zamar. Barry alleged that Zamar, an Immigration and Customs
Enforcement (“ICE”) Officer, used excessive force against him while executing an
immigration administrative warrant at his apartment. The District Court, however,
concluded that Barry lacked a viable claim under Bivens v. Six Unknown Named Agents
of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and it also denied his motion for
*
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not
constitute binding precedent.
2
leave to file a third amended complaint and his motion for reconsideration of the same.
We agree with the District Court that under Supreme Court precedent, Barry’s claim
presents a new Bivens context and that at least one special factor counsels against
recognizing a new Bivens remedy. We also conclude that the District Court did not
abuse its discretion in denying Barry’s untimely request to amend his complaint and his
motion for reconsideration. Thus, we will affirm the District Court’s orders in full.
I.
A. 1
We write primarily for the parties and recite only the facts essential to our
decision. A ten-officer federal task force conducted a raid at Barry’s Newark apartment
in 2017. Although the task force consisted primarily of members of the United States
Marshals Service, it also included ICE Officer Zamar. The task force sought to execute
an immigration administrative warrant on Barry’s brother, Mamadou, who was living
with him. Mamadou had been erroneously released from prison just one day before the
raid. Mamadou had an extensive criminal history and was subject to an active ICE
detainer and immigration administrative warrant for his return to ICE custody.
Barry, a United States citizen, was in his apartment when the task force arrived. A
member of the task force knocked on Barry’s door and announced that they were police.
Barry opened the door and stepped back when he saw task force members pointing
machine guns at him. Each officer wore his official badge. Barry told the task force his
1
At the summary judgment stage, we draw all reasonable factual inferences in Barry’s
favor. Tolan v. Cotton, 572 U.S. 650, 656–57 (2014).
3
name upon being asked and also showed them his identification. According to Barry,
although he did not resist or flee, members of the task force attacked him and handcuffed
him. One task force member allegedly put his knee on Barry’s neck and another put his
knee on his back. Barry was dragged down the stairs from the third floor. It is
undisputed that Barry sustained injuries to his head, chest, neck, and ribs from the
incident. He also later claimed that he suffered injuries to his feet, shin, and lower leg.
B.
Barry, represented by counsel, initially filed suit under 42 U.S.C. § 1983 against
Zamar, senior federal officials, and other unknown officers. Barry later amended his
complaint to add another defendant. After the named defendants (including Zamar)
moved to dismiss the first amended complaint, the parties consented to Barry filing a
second amended complaint, which replaced his section 1983 claims with Bivens claims.
The named defendants again moved to dismiss, and the parties later consented to
dismissal of several defendants. The case then proceeded to discovery on the single
remaining Bivens claim against the single remaining defendant — Zamar.
Barry moved for leave to file a third amended complaint, over ten months after the
District Court’s scheduling order deadline and two years after he filed his second
amended complaint. The proposed third amended complaint added five additional
defendants. The District Court denied Barry’s motion on the ground that he lacked good
cause for his untimely motion. Barry filed a motion for reconsideration, which the
District Court also denied.
Zamar then filed a motion for summary judgment, which the District Court
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granted. The District Court determined that material factual disputes existed concerning
whether Barry was cooperative during the incident and the level of Zamar’s involvement
in causing Barry’s injuries. Nonetheless, it concluded that Barry lacked a viable Bivens
claim against Zamar because the enforcement of immigration law by an immigration
officer presented a new Bivens context and that special factors weighed against
recognizing a new Bivens remedy. The District Court declined to reach the question of
whether Zamar was entitled to qualified immunity. Barry timely appealed.
II.
We will first consider whether Barry has presented a viable Bivens claim. Then
we will consider whether the District Court abused its discretion in denying Barry a third
opportunity to amend his complaint.
A. 2
In Bivens, the Supreme Court recognized an implied damages remedy under the
Fourth Amendment against federal narcotics officers who engaged in an illegal search
and seizure. Xi v. Haugen, 68 F.4th 824, 832 (3d Cir. 2023). In the past few decades,
however, “the Supreme Court has pulled back the reins” and, apart from two other Bivens
contexts not relevant here, “repeatedly refused to extend the Bivens remedy to any other
amendment, context, or category of defendant.” Id. Expanding Bivens is now, in a word,
“disfavored.” Id. at 832 (quoting Ziglar v. Abbasi, 582 U.S. 120, 135 (2017)).
2
The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have jurisdiction
pursuant to 28 U.S.C. § 1291. We exercise plenary review of a summary judgment
decision. Ellis v. Westinghouse Elec. Co., LLC, 11 F.4th 221, 229 (3d Cir. 2021).
5
Under the Court’s recent guidance, we must apply a two-step inquiry to determine
whether a Bivens claim is viable. Egbert v. Boule, 596 U.S. 482, 492 (2022). We first
ask whether Barry’s case presents a new Bivens context. Id. If it does, we must next
determine if special factors counsel against recognizing a new Bivens remedy. Id. We
will consider each step of the inquiry below, while being mindful of the Court’s
observation that this two-step inquiry “often resolve[s] to a single question: whether
there is any reason to think Congress might be better equipped to create a damages
remedy.” Id.
1.
A case presents a new Bivens context if it is “different in a meaningful way from
previous Bivens cases decided by th[e] [Supreme] Court.” Ziglar, 582 U.S. at 139. This
“threshold test” is “easily satisfied.” Xi, 68 F.4th at 834 (citation omitted). The Supreme
Court has provided examples of meaningful differences; as relevant here, these include a
“new category of defendants” and “the statutory or other legal mandate under which the
officer was operating.” Ziglar, 582 U.S. at 135, 139–40. The District Court concluded
that Barry’s case presented a new Bivens context because Zamar was an ICE officer who
was enforcing immigration law during the task force raid. We agree.
Our sister court of appeals’ decision in Tun-Cos v. Perrotte, 922 F.3d 514 (4th Cir.
2019), is instructive. There, nine Latino men brought Bivens claims against ICE agents
who, among other things, invaded their homes without a warrant. Id. at 517. The court
concluded that the plaintiffs’ action arose in a new Bivens context because unlike the
federal narcotics officers enforcing criminal law in Bivens, the federal officers were ICE
6
agents operating under immigration law, which was “substantively distinct” from
criminal law because “[i]mmigration enforcement is by its nature addressed toward
noncitizens, which raises a host of considerations and concerns that are simply absent in
the majority of traditional law enforcement contexts.” Id. at 524.
We are persuaded by the reasoning in Tun-Cos. Because Barry’s case is also
against an ICE agent (a new category of defendant) enforcing immigration law (a new
statutory mandate), it arises in a new Bivens context. Cf. Elhady v. Unidentified CBP
Agents, 18 F.4th 880, 886 (6th Cir. 2021) (“Every other circuit . . . faced with an
invitation to expand Bivens to the border/immigration context has held firm.”), cert.
denied sub nom. Elhady v. Bradley, 143 S. Ct. 301 (2022).
Barry raises two primary counterarguments, but neither is persuasive. First, he
contends that his case is “indistinguishable” from Bivens because “[i]n both cases, the
plaintiffs alleged that federal agents entered their homes, inflicted excessive force and
arrested them without probable cause.” Barry Br. 14–15. But the Supreme Court has
expressly rejected such similarities as “superficial.” Egbert, 596 U.S. at 495.
In Egbert, Robert Boule was a United States citizen and Border Patrol confidential
informant who owned a bed-and-breakfast near the United States–Canadian border. Id. at
488–89. Boule claimed that a Border Patrol agent violated his Fourth Amendment rights
by using excessive force against him while conducting a search of his property to
investigate the immigration status of one of his foreign guests. Id. In describing the
similarities between Boule’s case and Bivens as “superficial,” the Supreme Court
clarified that even “almost parallel circumstances” are insufficient “to support the judicial
7
creation of a cause of action.” Id. at 495; see Xi, 68 F.4th at 834 (“Egbert tells us that
‘almost parallel circumstances’ are not enough[.]’” (citation omitted)). So too, with
Barry. Despite sharing some superficial similarities with Bivens, Barry’s case
meaningfully differs from Bivens, as described above. Thus, it presents a new Bivens
context.
Second, Barry claims that his case does not present a new Bivens context because,
in his view, Zamar was enforcing criminal, not immigration, law against him. The gist of
Barry’s theory appears to be that Zamar was acting in an immigration capacity with
respect to his brother Mamadou but in a criminal capacity with respect to Barry. Egbert,
however, forecloses this kind of argument. Recall that in Egbert, Boule was also a
United States citizen, and Boule’s foreign guest, not Boule, was the subject of Agent
Egbert’s immigration investigation. Yet the Supreme Court did not consider those
distinctions relevant for purposes of its two-step inquiry. To the contrary, the Court
admonished the lower court for conducting its analysis at “too granular a level.” Egbert,
596 U.S. at 496. The relevant question in Egbert was far broader: “we ask here whether a
court is competent to authorize a damages action . . . against Border Patrol agents
generally.” Id. We thus decline to dive into the granular details of Barry’s case in
assessing whether it presents a new Bivens context.
2.
Having established that Barry’s case presents a new Bivens context, we now turn
to whether special factors counsel against extending a Bivens remedy to this context. A
special factor exists whenever “there is any rational reason (even one) to think that
8
Congress is better suited to ‘weigh the costs and benefits of allowing a damages action to
proceed.’” Egbert, 596 U.S. at 496 (emphases in original) (quoting Ziglar, 582 U.S. at
136); see also id. (“[E]ven if there is the ‘potential’ for such consequences, a court cannot
afford a plaintiff a Bivens remedy.” (emphasis in original) (quoting Ziglar, 582 U.S. at
148)). The District Court found two special factors here: Congress’s heavy involvement
in immigration enforcement, and its repeated refusal to provide a damages remedy for
plaintiffs like Barry. We need not reach those potential special factors, however, because
another special factor plainly forecloses relief here: the existence of an alternative
remedial scheme.
The Supreme Court explained in Egbert that “[s]o long as Congress or the
Executive has created a remedial process that it finds sufficient to secure an adequate
level of deterrence, the courts cannot second-guess that calibration by superimposing a
Bivens remedy.” 596 U.S. at 498. We agree with the court in Tun-Cos that the
Immigration and Nationality Act (“INA”) “does indeed contain such a remedial
structure.” 922 F.3d at 526. The court in Tun-Cos identified federal regulations that
establish standards for immigration enforcement activity under the INA and an expedited
internal review process of alleged violations of those standards. Id. (citing 8 C.F.R.
§§ 287.8, 287.10). The Supreme Court in Egbert also cited the internal review process in
§ 287.10 in concluding that an alternative remedial scheme foreclosed Bivens relief. 596
U.S. at 497.
We recognize this remedial scheme might prove to be cold comfort to Barry, who
seeks an adversarial process and monetary damages, but the Supreme Court has declared
9
that the government’s procedures need not be as effective as an individual damages
remedy to foreclose Bivens relief. Egbert, 596 U.S. at 497–98; Xi, 68 F.4th at 837. We
therefore conclude that Barry lacks a viable Bivens action. 3
B. 4We turn now to Barry’s appeal of the District Court’s order denying him leave to
file a third amended complaint and its order denying his motion for reconsideration of the
same. Although Barry’s notice of appeal failed to designate these decisions, we have
appellate jurisdiction to review these interlocutory orders because they merged into the
final judgment for purposes of appeal. Fed. R. App. P. 3(c)(4); R & C Oilfield Servs.
LLC v. Am. Wind Transp. Grp. LLC, 45 F.4th 655, 659 (3d Cir. 2022).
The District Court denied Barry’s motion for leave to amend because he failed to
show good cause for filing his motion more than ten months after the scheduling order’s
deadline for amending a complaint. Then, as now, Barry argues that he was unable to
obtain sufficient information about the five new defendants he sought to add until after
the February 1, 2021 deadline. But as the District Court pointed out, even after Barry
learned about these defendants’ involvement in the incident, he waited more than eight
months to file his motion. We have considered Barry’s arguments and conclude that the
3
We have no need to reach the separate question of whether Zamar is entitled to qualified
immunity. Bistrian v. Levi, 912 F.3d 79, 96 n.25 (3d Cir. 2018).
4
We review both a district court’s decision denying leave to amend a complaint and its
decision denying reconsideration of the same for abuse of discretion. United States ex
rel. Ascolese v. Shoemaker Constr. Co., 55 F.4th 188, 193 (3d Cir. 2022).
10
District Court acted well within its discretion in denying him leave to amend and
reconsideration.
III.
For the foregoing reasons, we will affirm the District Court’s order granting
Zamar’s motion for summary judgment and its orders denying Barry’s motion for leave
to amend his complaint and motion for reconsideration.
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