Offutt v. Parker et al

Filing 38

ORDER granting 25 Motion to Dismiss. Count 1 against Derek Parker and Jason Herzing is DISMISSED with prejudice. The Clerk of Court is DIRECTED to update the docket in accordance with footnote 1. Signed by Judge Stephen P. McGlynn on 3/11/2025. (anp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TYRON OFFUTT,
Plaintiff,
v.

Case No. 23-cv-351-SPM

DEREK PARKER, JASON HERZING,
and JAMES RAMSEY, 1
Defendants.

MEMORANDUM AND ORDER
McGLYNN, District Judge:
Plaintiff Tyron Offutt, an inmate of the Federal Bureau of Prisons (“BOP”), who at
the time he filed his Complaint was a detainee at the Clinton County Jail but is now
incarcerated at United States Penitentiary – Leavenworth (“USP – Leavenworth”), brings
this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983 and
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 402 U.S. 388 (1971). This
matter is currently before the Court on a motion to dismiss or, alternatively, motion for
reconsideration of the threshold order filed by Defendants Derek Parker and Jason
Herzing (Doc. 25). Offutt filed a response (Doc. 30) in opposition to the motion.

1 Derek Parker and Jason Herzing have now identified themselves by their proper names. The

Clerk of Court is DIRECTED to CORRECT the docket to reflect defendants’ proper names.

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BACKGROUND
Offutt’s claims stem from the execution of a search warrant by Federal Bureau of
Investigations (“FBI”) agents Jason Herzing and Derek Parker. On February 3, 2021,
Herzing and Parker executed a search warrant for the address 212 N. Cherry St.,
Centralia, Illinois (Doc. 10, p. 2). But Offutt alleges that the location included two units,
and he resided at 212 ½ N. Cherry, the upper unit of the two-unit building (Id.). Offutt
alleges that because the warrant stated it was for 212 N. Cherry, that the officers violated
his Fourth Amendment rights when they searched the upper unit belonging to Offutt
(Id.). The officers seized numerous items from Offutt’s dwelling to include: vintage sports
cards, Offutt’s social security card and birth certificate, 14K gold necklace, and debit cards
(Id.). None of the items were ever returned to Offutt.
After a review of Offutt’s Complaint pursuant to 28 U.S.C. §1915A, Offutt was
allowed to proceed on the following claim against Parker and Herzing:
Count 1:

Fourth Amendment claim against Parker and Herzing for the
search of Offutt’s home and seizure of personal items.

(Doc. 10, p. 3). 2
The Court initially allowed the claim to proceed, despite the Supreme Court’s
recent rulings cautioning courts against further expanding the Bivens remedy because, at
first glance, the claim appeared similar to that in Bivens (Doc. 10, p. 4 n. 3). But Parker and

2 Offutt was also allowed to proceed on a Fourth Amendment claim against Centralia Police

Officer James Ramsey for an allegedly unlawful stop, search, and seizure of Offutt’s vehicle
(Count 2). Offutt’s claim against Officer Ramsey, however, was brought pursuant to 42 U.S.C. §
1983 and is not the subject of the pending motion to dismiss.

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Herzing now move to dismiss Offutt’s claim under Federal Rule of Civil Procedure
12(b)(6) in light of the Supreme Court’s ruling in Ziglar v. Abbasi, 582 U.S. 120, 130 (2017)
and its progeny. Specifically, they argue that Offutt fails to state a claim pursuant to
Bivens because his claim does present a new Bivens context and special factors mitigate
against expanding a Bivens remedy to Offutt’s claim.
LEGAL STANDARDS
A motion to dismiss filed under Rule 12(b)(6) serves the purpose of deciding the
adequacy of the complaint. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990).
To survive a Rule 12(b)(6) motion, a complaint must allege enough factual information to
“state a claim to relief that is plausible on its face” and “raise a right to relief above the
speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). A claim is
plausible when the plaintiff “pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). A plaintiff need not plead detailed factual allegations, but
he or she must provide “more than labels and conclusions, and a formulaic recitation of
the elements.” Twombly, 550 U.S. at 570. When considering a Rule 12(b)(6) motion, the
Court must accept well-pleaded facts as true and draw all inferences in favor of the
plaintiff. McReynolds v. Merrill Lynch & Co., Inc., 694 F.3d 873, 879 (7th Cir. 2012).
DISCUSSION
Parker and Herzing argue that the claim against them is subject to dismissal
because it presents a new context under Bivens. Offutt filed this lawsuit pursuant to Bivens
v. Six Unknown Named Agents, 403 U.S. 388 (1971). There is no Congressional authority to
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award damages to “plaintiffs whose constitutional rights [have been] violated by agents
of the Federal Government.” Ziglar v. Abbasi, 582 U.S. 120, 130 (2017). In Bivens, however,
the Supreme Court recognized an implied action for damages to compensate persons
injured by federal officers who violated the Fourth Amendment’s prohibition against
unreasonable searches and seizures. Id. at 130-31. Since this decision, the Supreme Court
has recognized only two other instances in which an implied damages remedy under
Bivens is available for a constitutional deprivation – a Fifth Amendment sex
discrimination claim, and an Eighth Amendment claim for denial of medical care for a
serious medical condition. See Davis v. Passman, 442 U.S. 228 (1979); Carlson v. Green, 446
U.S. 14 (1980). Recent cases have declined to extend a Bivens remedy to any other contexts
and stated that further expansion of Bivens is a “disfavored judicial activity.” Ziglar, 582
U.S. at 135 (declining to extend Bivens to Fifth Amendment due process/conditions of
confinement/abuse and equal protection claims and to Fourth/Fifth Amendment strip
search claims); Egbert v. Boule, 596 U.S. 482 (2022) (no Bivens remedy for First Amendment
retaliation claim or Fourth Amendment excessive force claim).
When presented with a proposed Bivens claim, a district court must undertake a
two-step inquiry. See Hernandez v. Mesa, 589 U.S. 93, 102 (2020). First, a court asks whether
the case presents a new Bivens context, i.e., whether it is meaningfully different from the
three cases in which the Supreme Court previously implied a damages action. Ziglar, 582
U.S. at 139-140. Regarding the first step, the Supreme Court noted:
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
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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.
Second, if a claim arises in a new context, the court must consider whether any
“special factors” indicate that the Judiciary is at least arguably less equipped than
Congress to “weigh the costs and benefits of allowing a damages action to proceed.” Id.
at 136. The Supreme Court clarified in Egbert that the second part of this analysis
essentially boils the entire analysis down to a single question: “whether there is any
rational reason (even one) to think that Congress is better suited to ‘weigh the costs and
benefits of allowing a damages action to proceed.’” Egbert, 596 U.S. at 496 (quoting Ziglar,
582 U.S. at 136). If there is even a “single reason to pause before applying Bivens in a new
context, a court may not recognize a Bivens remedy.” Id. at 492 (internal quotations
omitted). In addition, a Court “may not fashion a Bivens remedy if Congress already has
provided, or has authorized the Executive to provide, an ‘alternative remedial
structure.’” Id. at 493. Case law makes clear that “in all but the most unusual
circumstances, prescribing a cause of action is a job for Congress, not the courts.” Id. at
486.
Offutt’s claim against Parker and Herzing clearly presents a new Bivens context.
Bivens involved the warrantless arrest and seizure of the plaintiff and search of his home
in violation of the Fourth Amendment. Bivens, 403 U.S. at 389. Here, some aspects of
Offutt’s claim are similar to those in Bivens. Offutt also alleges that federal officers
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improperly searched and seized items from his home in violation of the Fourth
Amendment. But Offutt’s claims are also distinctly different from those in Bivens. Unlike
in Bivens, the officers searched Offutt’s residence pursuant to a warrant. Although Offutt’s
claims fall under the same constitutional provision as that in Bivens, Offutt’s claims arise
in a new context, the search and seizure by officers pursuant to a warrant. See Hernandez,
589 U.S. at 103 (“A claim may arise in a new context even if it is based on the same
constitutional provision as a claim in a case in which a damages remedy was previously
recognized.”). See also Annappareddy v. Pascale, 996 F.3d 120, 135-36 (4th Cir. 2021) (finding
that a search and seizure conducted with a warrant presented a new Bivens context)
Offutt, however, argues that the search of his home was not authorized by the
warrant because the warrant in the officer’s possession was for 212 N. Cherry and Offutt
lived at 212 ½ N. Cherry. Thus, Offutt argues, the officers did not have a warrant when
they searched his home, and his claims fall squarely within the confines of Bivens. The
Seventh Circuit has allowed claims to proceed under Bivens for searches conducted
pursuant to a warrant that was based on false and misleading affidavits, noting that the
search of a property with an invalid warrant amounted to a warrantless search. See
Greenpoint Tactical Income Fund LLC v. Pettigrew, 38 F.4th 555, 564 (7th Cir. 2022) (citing
Groh v. Ramirez, 540 U.S. 551, 558-59 (2004) (search with a warrant that lacked particularity
was equivalent to a warrantless search)).
But the warrant Offutt objects to in this case was never deemed invalid. In fact,
Offutt attacked the sufficiency of the warrant in his criminal case before this very Court
and the undersigned found that the warrant was valid. See United States v. Offutt, Case
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No. 21-cr-30029-SPM, Doc. 96 (March 30, 2022). In his criminal case, Offutt moved to
suppress the evidence obtained during the search and argued that the warrant was
defective because it contained the wrong address (Id. at p. 3). The undersigned found that
the attached picture and affidavit demonstrated that the place to be searched was a twostory premises and noted that Offutt occupied the upstairs address listed as 212 ½ N.
Cherry (Id. at p. 5). The searching officer, who was the affiant for the warrant-complaint,
knew that Offutt’s living quarters was on the second floor of the rental property and there
was no ambiguity as to what location was to be searched (Id.). Thus, the Court found that
the search warrant for Offutt’s living quarters was valid. After the trial, but prior to
sentencing, Offutt filed a pro se motion to suppress, again challenging the validity of the
warrant. Offutt, Case No. 21-cr-30029-SPM, Doc. 190. That motion was also denied. Offutt
did not appeal the Court’s ruling as to the search warrant (Doc. 25-1). See also United States
v. Offutt, 122 F.4th 268 (7th Cir. 2024). Thus, the warrant at issue in this case was deemed
valid. See Fosnight v. Jones, 41 F.4th 916, 922 (7th Cir. 2022) (“It's well established that
judges may take judicial notice of matters of public record when ruling on a motion to
dismiss.”).
Because there was a valid warrant in this case, the Court finds that allegations at
issue here present a new Bivens context. “[R]ecognizing new causes of actions under
Bivens is disfavored, and the Supreme Court has instructed that even a ‘modest extension’
of an existing context is all but forbidden.” Sargeant v. Barfield, 87 F. 4th 358, 366 (7th Cir.
2023) (citing Ziglar, 582 U.S. at 135, 147 (quoting Iqbal, 556 U.S. at 675)). The fact that the

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search of Offutt’s residence was conducted pursuant to a warrant presents a modest but
meaningful extension of Bivens.
The Court further finds special factors preclude expansion of Bivens to Offutt’s
Fourth Amendment claim. This inquiry focuses on “whether the Judiciary is well suited,
absent congressional action or instruction, to consider and weigh the costs and benefits
of allowing a damages action to proceed.” Ziglar, 582 U.S. at 136. The existence of other
alternative remedies “alone may limit the power of the Judiciary to infer a
new Bivens cause of action.” Id. at 137. See also Egbert, 596 U.S. at 493 (“If there are
alternative remedial structures in place, that alone, like any special factor, is reason
enough to limit the power of the Judiciary to infer a new Bivens cause of action.”)
(quotations and citations omitted). As the Supreme Court in Ziglar emphasized “when
alternative methods of relief are available, a Bivens remedy usually is not.” Id. at 145
(citations omitted).
In this case, Offutt has other avenues of relief. As Defendants point out in their
brief, Offutt could have reported his allegations of misconduct to the Department of
Justice’s Office of Inspector General. See Logsdon v. United States Marshal Service, 91 F.4th
1352, 1360 (10th Cir. 2024) (noting that improper conduct can be reported to the DOJ
Inspector General). Offutt also has an available alternative remedy through the Federal
Tort Claims Act, 28 U.S.C. § 1346 (b), 2671, et seq. See Millbrook v. United States, 569 U.S.
50, 55 (2013) (The FTCA allows an individual to pursue a tort claim for the “acts or
omissions of an investigative or law enforcement officer.”) (quotations omitted). To the
extent that Offutt seeks to have his confiscated property returned (Doc. 1, p. 2), he could
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also seek its return pursuant to the Federal Rules of Criminal Procedure. Specifically,
Federal Rule of Criminal Procedure 41(g) provides that “[a] person aggrieved by an
unlawful search and seizure of property or by the deprivation of property may move for
the property's return. The motion must be filed in the district where the property was
seized.” Although this provision does not provide for monetary damages, the “existing
remedies do not [need to] provide complete relief.” Egbert, 596 U.S. at 493. See also
Quinones-Pimentel v. Cannon, 85 F.4th 63, 75 (1st Cir. 2023) (collecting case) (finding that a
motion pursuant to 41(g) was an alternative remedy that prohibited the extension of
Bivens). Here, Offutt had other avenues to pursue the return of his property and object to
the actions of Defendants. Thus, the Court finds that the existence of alternative remedies
counsels against extending a Bivens remedy to Offutt’s claim. As a result, Bivens should
not extend to Offutt’s claim against Parker and Herzing and Offutt fails to present a viable
Bivens claim.
CONCLUSION
For the reasons stated above, Defendants’ motion to dismiss (Doc. 25) is
GRANTED and Count 1 against Derek Parker and Jason Herzing is DISMISSED with
prejudice.
IT IS SO ORDERED.
DATED: March 11, 2025.
/s/ Stephen P. McGlynn
STEPHEN P. McGLYNN
U.S. District Judge

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