640 F.Supp.3d 249
E.D.N.Y2022Background
- In 2014 Deputy U.S. Marshals Westfield, Bartosh, Banks, Ledogar, and Dineen arrested Oswald Lewis in Queens pursuant to an arrest warrant; parties dispute whether Lewis fired at officers or was unarmed and shot.
- Lewis alleges Westfield used excessive force (kicking Lewis after he surrendered/was handcuffed) and that the other deputies failed to intervene.
- Lewis was convicted in a related criminal case of assault with a deadly weapon and various firearms offenses.
- Lewis sued under Bivens for excessive force and failure-to-intervene; the district court granted summary judgment to defendants on most claims but preserved the excessive-force claim against Westfield and the failure-to-intervene claims against the others.
- After the Supreme Court decided Egbert v. Boule, the district court invited briefing on whether Egbert forecloses Lewis’s Bivens claims.
- The court concluded Egbert controls: Lewis’s claims present a new Bivens context and special factors (including existing Marshals Service/DOJ oversight mechanisms) counsel against recognizing a Bivens remedy, and therefore dismissed the remaining claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Lewis’s Fourth Amendment excessive-force and failure-to-intervene claims arise in a new Bivens context | Bivens permits an implied damages action for excessive force by federal officers | This case differs from Bivens (different agency, officers executing a warrant, different statutory mandate), so it is a new context | New context: yes — Deputy Marshals executing an arrest warrant are meaningfully different from the original Bivens defendants |
| Whether special factors (including alternative remedial schemes) preclude recognizing a Bivens remedy | Existing remedies are inadequate to deter or redress misconduct; Bivens should apply despite alternative processes | Marshals Service and DOJ/IG oversight and grievance processes provide alternative remedial mechanisms; Congress/Executive are better positioned to weigh remedies | Special factors counsel hesitation; presence of alternative remedial schemes forecloses extending Bivens — claims dismissed |
Key Cases Cited
- Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) (recognized an implied damages action for a Fourth Amendment violation against federal narcotics agents)
- Egbert v. Boule, 142 S. Ct. 1793 (2022) (held Bivens does not extend to excessive-force claim against CBP agent; set forth two-step inquiry and emphasized special factors/alternative remedies)
- Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) (explained Bivens expansion is disfavored and articulated the new-context/special-factors framework)
- Hernandez v. Mesa, 140 S. Ct. 735 (2020) (reiterated limits on expanding Bivens and caution regarding separation-of-powers concerns)
- Davis v. Passman, 442 U.S. 228 (1979) (recognized implied damages remedy in a Bivens-related context)
- Carlson v. Green, 446 U.S. 14 (1980) (recognized an implied damages remedy in another context)
- Corr. Servs. Corp. v. Malesko, 534 U.S. 61 (2001) (discussed limits on extending Bivens to new categories of defendants)