Decker v. Doe

Filing 233

ORDER (1) Overruling Defendants' 212 and 213 Objections to 210 Report and Recommendation; (2) Overruling Plaintiff's 214 Objections to 210 Report and Recommendation; and (3) Granting in Part and Denying in Part Defendants' 153 , 183 and 188 Motions to Dismiss. Signed by District Judge Matthew F. Leitman. (HRya)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROBERT K. DECKER,
Plaintiff,

Case No. 19-cv-11654
Hon. Matthew F. Leitman

v.
LILITA INFANTE, et al.,
Defendants.
__________________________________________________________________/
ORDER (1) OVERRULING DEFENDANTS’ OBJECTIONS TO REPORT
AND RECOMMENDATION (ECF Nos. 212, 213); (2) OVERRULING
PLAINTIFF’S OBJECTIONS TO REPORT AND RECOMMENDATION
(ECF No. 214); AND (3) GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTIONS TO DISMISS (ECF Nos. 153, 183, 188)
In this action, Plaintiff Robert K. Decker alleges that the Defendants – the
United States of America and certain employees of the United States – improperly
entered, remain in, and searched his home without a warrant and damaged his
property.

Defendants moved to dismiss Decker’s claims, and the assigned

Magistrate Judge issued a report and recommendation in which he recommended
that the Court dismiss all of Decker’s claims except for a trespass claim brought
against the United States (the “R&R”). (See R&R, ECF No. 210.) Now pending
before the Court are objections to the R&R by all parties. (See Objections, ECF Nos.
212, 213, 214.) For the reasons explained below, the Court OVERRULES all of

1

the objections and GRANTS IN PART AND DENIES IN PART Defendants’
Motions to Dismiss.

I
A
This case arises out of the search of a home that Decker owns in Detroit,
Michigan. In 2016, the Government was investigating Decker for allegedly selling
drugs on the internet. On August 11, 2016, in connection with that investigation, the
Government obtained an arrest warrant for Decker. (See Arrest Warrant, ECF No.
153-1.) On August 17, 2016, the Government obtained a search warrant for a home
that Decker owned at 5745 Artesian Street in Detroit, Michigan. (See Search
Warrant, ECF No. 59-2.) The next day, at 2:20 p.m., the Government obtained a
search warrant for a second home Decker owned on Artesian Street, 5754 Artesian.
(See Search Warrant, ECF No. 59-3.) A task force comprised of officers and agents
from several different Government agencies searched both homes on August 18,
2016. As explained in further detail below, Decker maintains that the search of 5754
Artesian Street occurred at around 9:00 a.m. on August 18, several hours before the
Government obtained the search warrant for that property.
Decker was not at either residence at the time of the searches.

The

Government later found and arrested Decker and charged him in the Southern
District of Florida with conspiracy to distribute controlled substances in violation of

2

21 U.S.C. §§ 841 and 846 and conspiracy to commit money laundering in violation
of 18 U.S.C. § 1956. (See Indictment, ECF No. 59-4.) Decker pleaded guilty to both
charges pursuant to a Rule 11 Plea Agreement, and the Florida District Court
sentenced him to 140 months in prison. (See Judgment, ECF No. 59-5.) Decker
appealed his convictions and sentence, and the Eleventh Circuit affirmed. See United
States v. Decker, 832 F. App’x 639 (11th Cir. 2020).
B
On June 22, 2021, Decker filed a Motion to Vacate his sentence in the Florida
District Court pursuant to 28 U.S.C. § 2255. (See Mot. to Vacate, ECF No. 153-4.)
In the Motion to Vacate, Decker insisted that the Government searched his homes
on Artesian Street without a warrant, and he argued that his trial counsel rendered
ineffective assistance when counsel failed to, among other things, “discover[] that
the search of my houses, internet, and computers was warrantless.” (Id.,
PageID.1029.) Decker also argued that the prosecutor violated his (Decker’s) Due
Process rights when the prosecutor “withheld material information about the
warrantless search of my houses.” (Id., PageID.1030.)
In response to Decker’s Motion, the Government presented to the court the
search warrants for both properties. Decker then changed his argument. In his reply
brief, instead of arguing that the Government never obtained warrants to search his
homes, Decker said only that the Government did not obtain a warrant to search

3

5754 Artesian until hours after it actually conducted that search. (See Reply, ECF
No. 153-5, PageID.1047.)

Decker argued in his reply that his counsel was

ineffective for “[f]ail[ing] to object to the [p]rosecutorial misconduct that was
comitted against the Defendant, Mr. Decker, by […] the illegal search warrant that
was obtained after [the residence at 5754 Artesian] was already searched by the
United States.” (Id.; emphasis added.)
The Florida District Court denied Decker’s Motion to Vacate in a written
order. (See Fla. Dist. Ct. Order, ECF No. 71-1.) In that order, the court rejected
Decker’s argument that his trial counsel was ineffective for “failing to investigate
(and presumably moving to suppress) ‘warrantless’ searches of Mr. Decker’s
premises and computers.” (Id., PageID.464.) In a section of the order titled “The
‘Warrantless’ Search,” the Florida District Court held that Decker’s “knowing and
voluntary guilty plea waive[d] his argument that his counsel was ineffective for
failing to challenge the ‘warrantless’ search of his premises and computer.” (Id.)
Despite holding that the claim was waived, the court also said that “Decker’s claim
[was] factually without any substance” because “[t]here was no warrantless search.”
(Id.)
C
It does not appear that Decker ever sought reconsideration of or appealed the
Florida District Court’s ruling denying his Motion to Vacate. Instead, Decker filed

4

this action. (See Compl., ECF No. 1.) The operative Complaint in this case is
Decker’s Amended Complaint found on the Court’s docket at docket number 135.
In that Amended Complaint, Decker again says that while the Defendants searched
his home at 5754 Artesian “some time before 9:00 a.m.” on August 18, the
Defendants did not actually obtain a search warrant for that property until several
hours after the search. (Am. Compl., ECF No. 135, PageID.894-896.) Decker
therefore insists that at the time the search was conducted, Defendants did not have
a warrant to search the property at 5754 Artesian. (See id.) He further claims that
the property at his home was damaged by the Defendants and that certain property
was stolen after Defendants failed to secure his home after they conducted their
search. (See id.)
Decker named as Defendants the Government agents and officers that he says
were involved in the search 5754 Artesian.

Those Defendants are: (1) Drug

Enforcement Administration Special Agent Stephen Popp; (2) Postal Inspector
Rafael Garcia, (3) FBI Special Agent Stephen Mason, (4) IRS Special Agent Karli
Klein; (5) IRS Special Agent Santiago Aquino; and (6) FBI Special Agent Carlos
Goris.1 Decker brought claims under the Federal Tort Claims Act (the “FTCA”) for

1

Decker named several other Government officers and agents as Defendants, but it
does not appear that any of those Defendants were ever served with the operative
Amended Complaint and none have formally appeared in the case and/or moved to
dismiss any claims that may be brought against them.
5

breaking and entering, trespass, and violation of the Michigan Constitution’s
unreasonable search and seizure clause, and a claim for damages under Bivens Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). (See
id.) On May 31, 2023, the United States was “substituted for all of the Defendants
named in their individual capacities as to [Decker’s] claims for breaking and
entering, trespass, and violation of the Michigan Constitution” (i.e., the claims
Decker brought under the FTCA). (Order, ECF No. 158.)
D
The individual Defendants have now moved to dismiss Decker’s Bivens
claim. (See Motions to Dismiss, ECF Nos. 153, 183.) In addition, the United States
has moved to dismiss Decker’s state-law claims brought under the FTCA. (See Mot.
to Dismiss, ECF No. 188.)
The Motions were referred to the assigned Magistrate Judge. On November
30, 2023, the Magistrate Judge issued the R&R in which he recommended that the
Court (1) grant the individual Defendants’ Motions to Dismiss the Bivens claim and
(2) grant in part and deny in part the United States’ Motion to Dismiss. (See R&R,
ECF No. 210.)
The Magistrate Judge began with the Bivens claim brought against the
individual Defendants. He explained that “[e]xpanding the reach of Bivens to a
different factual scenario ‘is now a disfavored judicial activity,’” and he concluded

6

that Decker had failed to state a viable Bivens claim because, among other things,
there were “at least two meaningful differences from [the scenarios described in]
Bivens.” (Id., PageID.1525, 1529, quoting Ziglar v. Abbasi, 582 U.S. 120, 135
(2017).)
The Magistrate Judge then moved to the claims brought against the United
States under the FTCA. In its Motion to Dismiss, the United States primarily argued
that those claims were barred by collateral estoppel because (1) the claims were
premised on Decker’s allegation that the Defendants searched 5754 Artesian without
a warrant and (2) the United States District Court for the Southern District of Florida
previously found, when denying Decker’s Motion to Vacate his sentence, that there
was “no warrantless search” of that property. The Magistrate Judge rejected the
Defendants’ argument “because the judge in the Southern District of Florida did not
make a determination on [Decker’s] argument that the 5754 Artesian search was
warrantless.” (Id., PageID.1533.)
The Magistrate Judge next concluded that Decker’s “breaking and
entertaining claim should be dismissed because it is not judicially cognizable,” and
he recommended that the Court dismiss Decker’s claim under the Michigan
Constitution because “the FTCA [did] not waive the United States’ sovereign
immunity from liability for violations of the Michigan Constitution.” (Id.,
PageID.1534-1535.)

7

Finally, the Magistrate Judge discussed Decker’s trespass claim. He rejected
the United States’ argument that “there was no trespass because the agents entered
[5754 Artesian] pursuant to a search warrant” because “[t]he facts do not support
[that] position since the search warrant was not signed until after the search had
begun.” (Id., PageID.1534.) He therefore recommended that the Court allow that
claim to proceed. (See id., PageID.1534, 1537.) The Magistrate Judge further
recommended that the only damages for property loss that Decker could recover for
that trespass were damages to property not detained by the Government. (See id.,
PageID.1537.)
E
All parties have now filed objections to the R&R. (See Objections, ECF Nos.
212, 213, and 214.) The Court will discuss each individual objection in turn below.
II
When a party objects to portions of a Magistrate Judge’s report and
recommendation, the Court reviews those portions de novo. See Fed.R.Civ.P.
72(b)(3); Lyons v. Comm’r of Soc. Sec., 351 F.Supp.2d 659, 661 (E.D. Mich. 2004).
The Court has no duty to conduct an independent review of the portions of the R&R
to which a party does not object. See Thomas v. Arn, 474 U.S. 140, 149 (1985).

8

III
The Court begins with the Defendants’ objections to the R&R. For the reasons
explained below, the objections are OVERRULED.
A
The Defendants first object to “the Magistrate Judge’s conclusion that
Decker’s claims are not barred by collateral estoppel.” (Objections, ECF No. 212,
PageID.1544-1548.) Defendants argue that when the Florida District Court denied
Decker’s Motion to Vacate his sentence, that court “found that the search of
[Decker’s] home at 5754 Artesian on August 18, 2016 […] was not warrantless.”
(Id., PageID.1544.) Defendants insist that “[t]hat ruling should have marked the end
of this lawsuit, which ultimately seeks a directly contradictory verdict that there was
a warrantless search.” (Id.; emphasis in original.) The Court cannot conclude on the
basis of the current briefing that Decker’s claims are barred by collateral estoppel.
The Sixth Circuit “has held that a prior decision shall have preclusive effect
on an issue raised in a later case if four elements are met: (1) the precise issue raised
in the present case must have been raised and actually litigated in the prior
proceeding; (2) determination of the issue must have been necessary to the outcome
of the prior proceeding; (3) the prior proceeding must have resulted in a final
judgment on the merits; and (4) the party against whom estoppel is sought must have

9

had a full and fair opportunity to litigate the issue in the prior proceeding.” Nat.
Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 908 (6th Cir. 2001).
The Court is not yet prepared to conclude whether (1) the Florida District
Court actually held that there “was no warrantless search” or (2) assuming the court
so held, the holding was necessary to the outcome of the proceedings. As explained
above, the Florida District Court held that Decker’s “knowing and voluntary guilty
plea waive[d] his argument that his counsel was ineffective for failing to challenge
the ‘warrantless’ search of his premises and computer.” (Fla. Dist. Ct. Order, ECF
No. 71-1, PageID.464.) The court nonetheless went on to discuss the merits of
Decker’s warrantless-search claim. It said that “Decker’s claim [was] factually
without any substance” because “[t]here was no warrantless search.” (Id.) Given
this wording and structure of the ruling, it is possible that the discussion of the merits
– the statement that “there was no warrantless search” – was dicta and thus not
entitled to preclusive effect. See, e.g., CHKRS, LLC v. City of Dublin, 984 F.3d 483,
491 (6th Cir. 2021) (explaining that dicta is not entitled to preclusive effect).
Moreover, even if the Florida District Court’s comments about the merits of
the warrantless-search claim could be considered an alternative holding and not mere
dicta, it would still not be clear that that alternative holding would be entitled to
preclusive effect. The Sixth Circuit “has not decided whether alternative grounds
for a judgment are each ‘necessary to the outcome’ for the purposes of issue

10

preclusion in a subsequent case involving only one of the grounds.” Nat. Satellite
Sports, 253 F.3d at 910. But it has held that where “one ground for the decision is
clearly primary and the other only secondary, the secondary ground is not ‘necessary
to the outcome’ for the purposes of issue preclusion.” Id. Here, it is not clear to the
Court whether the Florida District Court’s discussion of the merits, if treated as an
alternative holding, would be entitled to preclusive effect under this test.
Given this uncertainty, the Court cannot yet conclude whether Decker’s
trespass claim is barred by collateral estoppel, and the Court therefore
OVERRULES Defendants’ first objection. The Court, however, will grant the
United States leave to file a renewed motion to dismiss on its collateral estoppel
theory. In that motion, the United States shall (1) address whether the Florida
District Court’s discussion of the merits was dicta or an alternative holding and (2)
specifically identify and apply relevant case law addressing the preclusive effect of
alternative grounds for relief.2

2

In the R&R, the Magistrate Judge concluded that collateral estoppel did not apply
here for a different reason, namely that the Florida District Court “did not address
[Decker’s] argument (or the fact) that the search was conducted around 9 a.m. but
the warrant was not signed until later that afternoon. As a result, that issue was not
actually and necessarily determined.” (R&R, ECF No. 210, PageID.1521.) If the
United States files a renewed motion to dismiss, it shall address the reasoning
underlying the Magistrate Judge’s conclusion that Decker’s warrantless-search
claim was not “actually and necessarily determined” by the Florida District Court.
11

B
Defendants next object to the Magistrate Judge’s conclusion that Decker may
recover damages for “property that was damaged while [the Defendants searched]
Decker’s home.” (Objections, ECF No. 212, PageID.1548-1554.) Defendants argue
that the “detention of goods” exception to the waiver of sovereign immunity under
the FTCA bars Decker from claiming such damages.3 More specifically, Defendants
contend that “[d]uring the time [they] were at [5754 Artesian] conducting their
investigation, the contents of the home (and especially any items Defendants
allegedly touched, damaged, and/or destroyed) were temporarily detained, triggering
[the] detention of goods exception.” (Id., PageID.1551.)
However, it is not yet clear to the Court whether or to what extent the detention
of goods exception applies here. In the operative Amended Complaint, Decker
alleges that Defendants damaged, among other things, his real property and fixtures,
including the doors to that property and his personal security system, when they
searched his home at 5754 Artesian. (See Am. Compl., ECF No. 135, PageID.895896.) It is not obvious that the detention of good exception applies to real property
and fixtures, and Defendants have not cited any cases so holding. Instead, the two

3

The “detention of goods” exception provides that the Government’s waiver of
sovereign immunity does not apply to “[a]ny claim arising in respect to the
assessment or collection of any tax or customs duty, or the detention of any goods
or merchandise by any officer of customs or excise or any other law-enforcement
officer.” 28 U.S.C. § 2680(c).
12

cases on which Defendants primarily rely, Lippman v. City of Miami, 622 F.Supp.3d
1337 (S.D. Fla. 2008) and Mid-South Holding Co. v. United States, 123 F.Supp.2d
1330 (M.D. Fla. 1999) involved damage to personal property found during the
searches an automobile and fishing boat respectively. The Court concludes that
Defendants’ arguments under the detention of goods exception are best resolved on
at summary judgment and on the basis of a fully-developed factual record – a record
that identifies what property, if any, was damaged. With such a record developed,
Defendants may present arguments under the detention of goods exception and
explain to the Court why that exception bars Decker’s claim with respect to the
particular property at issue.4
C
In Defendants’ third objection, Defendants argue that they had a legal basis
for entering Decker’s home and that the Magistrate Judge therefore erred when he
recommended allowing Decker to proceed on his trespass claim. (See Objections,
ECF No. 212, PageID.1554-1556.) More specifically, Defendants say that the arrest
warrant for Decker, which “was issued five days before the search of 5754 Artesian,”
provided the Defendants the “legal authority […] to enter Decker’s property.” (Id.,
PageID.1545-1555.) Defendants insist that because “it is undisputed that [they] had

4

Likewise, the Court is not yet prepared to hold that Decker cannot recover damages
for property that Decker says were stolen from his home. The United States may reraise that argument on summary judgment on a full factual record.
13

an arrest warrant for Decker when they entered his home, entry was authorized and
not trespassing.” (Id., PageID.1555.)
The Court is not yet prepared to dismiss Decker’s trespass claim based on the
existence of the arrest warrant for two reasons. First, the Court cannot conclude
from the pleadings alone that the arrest warranty authorized the individual
Defendants to enter 5754 Artesian. An arrest warrant “implicitly carries with it the
limited authority to enter a dwelling in which the suspect lives” only “when there is
reason to believe the suspect is within.” Payton v. New York, 445 U.S. 573, 603
(1980). See also United States v. Hardin, 539 F.3d 404, 416 (6th Cir. 2008) (holding
that search of residence violated defendant’s Fourth Amendment rights where, prior
to the search, officers did not have sufficient evidence to believe that the subject of
an arrest warrant was inside the residence). Here, Decker’s allegations do not
suggest that the Defendants had reason to believe that he was present in 5754
Artesian when they entered that residence. And if they did not have such a
reasonable belief, then the arrest warrant would not have authorized their entry.
Second, and in any event, even if the arrest warrant authorized the individual
Defendants’ initial entry into 5754 Artesian, there seems to be a plausible allegation
that Defendants’ exceeded the scope of that authorization. Decker’s Amended
Complaint may be read as plausibly alleging that Defendants stayed inside 5754
Artesian to conduct their search of the property for a substantial period of time after

14

it would have become clear to them that Decker was not present. It is not clear to
the Court whether the arrest warrant would authorize such a prolonged search of
Decker’s residence under those circumstances. Thus, the Court cannot yet conclude
that the Defendants’ possession of an arrest warrant for Decker is fatal to Decker’s
trespass claim.
D
Finally, Defendants “object[] to the Magistrate Judge’s conclusion that a
warrantless search of 5754 Artesian occurred.” (Objections, ECF No. 212,
PageID.1556-1557.)

Defendants contend that “Decker’s warrantless search

allegation is just that – an allegation.” (Id., PageID.1556.) The Court agrees with
Defendants that Decker’s contention that 5754 Artesian was searched before
Defendants obtained a warrant to search that property is just an allegation, but it is
an allegation that the Court must accept as true for the purposes of resolving their
Motions to Dismiss.
F
For all of these reasons, Defendants’ objections are OVERRULED.

15

IV
The Court now turns to Decker’s objections.5 For the reasons explained
below, the objections are OVERRULED.
A
Decker first objects to the R&R on the basis that the Court has not appointed
him counsel. (See Objections, ECF No. 214, PageID.1562.) Decker contends that
he has limited access to legal resources and that without counsel, he is being
“denie[d] meaningful access to the courts.” (Id. See also id., PageID.1569.) This
objection is OVERRULED because it is not relevant to any of the bases on which
the Magistrate Judge resolved the R&R. The Court further notes that, unlike in
criminal cases, there is no constitutional right to the appointment of counsel in civil
cases, and the Court has broad discretion in determining whether counsel should be
appointed in such cases. See Childs v. Pellegrin, 822 F.2d 1382, 1384 (6th Cir. 1987)
(“[A]ppointment of counsel in a civil case is ... a matter within the discretion of the
court. It is a privilege and not a right.”) (internal quotation omitted). And here,
Decker has shown an ability to communicate his arguments clearly and coherently.

5

On January 23, 2024, Decker filed a Motion for an Extension of Time to file his
objections to the R&R. (See Mot., ECF No. 218.) Decker has since filed those
objections, so the Court will TERMINATE Decker’s January 23 Motion as moot.
Decker has also filed a Motion to for Leave File a Sur-Reply. (See Mot., ECF No.
227.) That motion is GRANTED. The Court will construe Decker’s Sur-Reply
Motion as a sur-reply in further support of his objections to the R&R.
16

The Court is therefore not persuaded at this time that it is appropriate to appoint
counsel for Decker.
B
Decker next objects to the Magistrate Judge’s recommendation that the Court
dismiss his Bivens claim against the individual Defendants. (See Objections, ECF
No. 214, PageID.1562-1565.) Decker first says that the Magistrate Judge previously
granted him leave to file an Amended Complaint to add a Bivens claim against the
individual Defendants, and he insists that the Magistrate Judge’s decision now to
recommend dismissal of that claim violates the “law of the case” doctrine. (Id.) The
Court disagrees.
The law of the case doctrine “states that ‘when a court decides upon a rule of
law, that decision should continue to govern the same issues in subsequent stages in
the same case.’” Moses v. Bus. Card. Express, Inc., 929 F.2d 1131, 1137 (6th Cir.
1991) (quoting Arizona v. California, 460 U.S. 605, 618 (1983)). But the doctrine
“is a rule of judicial comity rather than one of jurisdictional limitation;” it “does not
limit a court’s power to make an independent decision” but rather “directs a court’s
discretion.” Id. (quotation omitted). Indeed, the law of the case doctrine “is not an
‘inexorable command.’” E.E.O.C. v. United Ass’n of Journeymen & Apprentices of
the Plumbing & Pipefitting Indus. of the U.S. & Canada, Local No. 120, 235 F.3d
244, 250 (6th Cir. 2000). “It is within the sole discretion of a court to determine if a

17

prior ruling should be reconsidered.” Id. See also United States v. Todd, 920 F.2d
399, 403 (6th Cir. 1990) (recognizing that “[t]he doctrine of the law of the case […]
does not foreclose a court from reconsidering issues in a case previously decided by
the same court or another court”).
Here, the Magistrate Judge did not abuse his discretion when he decided to
reevaluate the merits of Decker’s Bivens claim even though he had initially held that
it was not futile for Decker to raise that claim in his pleadings. As the Magistrate
Judge explained in the R&R (see R&R, ECF No. 210, PageID.1522 at n. 1), his
recommendation to allow Decker to plead a Bivens cause of action was made without
the benefit of briefing on the effect of Egbert v. Boule, 142 S. Ct. 1793 (2022), a
decision in which the Supreme Court continued its narrowing of Bivens, and cases
interpreting and applying Egbert. For the reasons given by the Magistrate Judge,
the Court concludes that the law of the case doctrine did not bar the Magistrate Judge
from revisiting this issue and that he properly did so.
For all of these reasons, Decker’s objection that the Magistrate Judge violated
the law of the case doctrine is OVERRULED.
C
Next, Decker objects to the Magistrate Judge’s conclusion that his Bivens
claim is not viable because the claim presents a “new context.” (Objections, ECF
No. 214, PageID.1565-1569.) The Court disagrees.

18

The United States Court of Appeals for the Sixth Circuit recently explained
the requirements for a Bivens claim and the limited nature of such a claim as follows:
To establish a claim under Bivens, a plaintiff must show
that he was “deprived of rights secured by the Constitution
or laws of the United States” and that “the defendants who
allegedly deprived [him] of those rights acted under color
of federal law.” Marie v. Am. Red Cross, 771 F.3d 344,
364 (6th Cir. 2014) (emphasis omitted). [….]
The Supreme Court has explicitly recognized only three
contexts in which a private right of action for damages
may be properly brought against federal officials for
constitutional violations: “a claim against FBI agents for
handcuffing a man in his own home without a warrant; a
claim against a Congressman for firing his female
secretary; and a claim against prison officials for failure to
treat an inmate's asthma.” Ziglar v. Abbasi, 582 U.S. 120,
140 (2017); see Bivens, 403 U.S. at 397; Davis v.
Passman, 442 U.S. 228, 245–47(1979); Carlson v. Green,
446 U.S. 14, 19 (1980).
Expanding the reach of Bivens “is now a ‘disfavored’
judicial activity.” Ziglar, 582 U.S. at 135 (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)); see Egbert v.
Boule, 142 S. Ct. 1793, 1803 (2022). Thus, in determining
whether Bivens can afford relief in a particular case, a
court must first ask “whether the case presents ‘a new
Bivens context’—i.e., is it ‘meaningful[ly]’ different from
the three cases in which the Court has implied a damages
action.” Egbert, 142 S. Ct. at 1803 (alteration in original)
(quoting Ziglar, 582 U.S. at 139–40). If so, the context is
new, and a Bivens remedy is “unavailable if there are
‘special factors’ indicating 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. (quoting Ziglar, 582 U.S. at 136). “If there is even a
single ‘reason to pause before applying Bivens in a new

19

context,’ a court may not recognize a Bivens remedy.” Id.
(quoting Hernandez v. Mesa, 140 S. Ct. 735, 743 (2020)).
Cain v. Rinehart, 2023 WL 6439438, at *3 (6th Cir. July 25, 2023).
The Sixth Circuit has further noted that “[w]hat started out as a presumption
in favor of implied rights of action has become a firm presumption against them.
The Supreme Court has not recognized a new Bivens action in the 40 years since
Carlson. And it has repeatedly declined invitations […] to create such actions. [….].
Most telling of all, it has rejected extensions of Bivens to claims that involve
constitutional rights that Bivens already reaches.” Callahan v. Federal Bureau of
Prisons, 965 F.3d 520, 535 (6th Cir. 2020).
The Magistrate Judge correctly ruled that Decker’s Bivens claim is not viable.
First, the claim presents a new context. Bivens addressed a warrantless entry into a
home, whereas the individual Defendants who entered 5754 Artesian had an arrest
warrant for Decker. The legal framework for evaluating the entry here thus differs
from Bivens. For the reasons explained above, here the Court must ask, among other
things, whether the individual Defendants had a reasonable basis for believing that
Decker was present inside 5754 Artesian and whether the arrest warrant authorized
the length of their stay within that residence. Bivens did not involve a consideration
of either of these issues. And “courts in several recent cases have found that the
existence of a[n arrest] warrant creates a new context for Bivens purposes.” See,

20

Cain, 2023 WL 6439438, at *3 (collecting cases and holding that existence of arrest
warrant created new context).
Second, “‘special factors counsel[ ] hesitation’ in recognizing the new claim.”
Id. at *4, quoting Callahan, 965 F.3d at 524. As explained above, the search of 5754
Artesian was conducted by a joint task force of agents from several different
Government agencies, including the Postal Service, IRS, and FBI in a coordinated
operation. “Allowing claims for damages against members of federal [] task forces
could impair the government’s recruitment of officers to participate in those task
forces and could negatively affect task members’ performance of their duties.” Id.
That “special factor” is an additional reason for the Court to be cautious about
extending Bivens here. See also Logsdon v. United States Marshal Service, 91 F.4th
1352, 1358 (10th Cir. 2024) (recognizing that because “chilling participation in joint
task forces is [] a potential cost of expanding Bivens [, ….] [t]he Supreme Court
would [likely] hold ‘that the Judiciary is not undoubtedly better positioned than
Congress to authorize a damages action in [this] context,’ where the impact of
potential liability on cooperation among law-enforcement agencies needs to be
assessed”) (quoting Egbert, 596 U.S. at 495). For all of these reasons, the Court
agrees with the Magistrate Judge that it would not be appropriate to expand Bivens
to the facts that exist here.

21

Decker finally argues that he should be allowed to proceed under Bivens
because the damages available under Bivens are “more effective” than his other
available remedies. (Objections, ECF No. 214, PageID.1569.) But as the Magistrate
Judge correctly explained in the R&R, there are “[a]lternative remedies available”
to Decker, including a claim for monetary damages against the United States under
the FTCA, which Decker is pursuing here. (R&R, ECF No. 210, PageID.15301531.) Moreover, as the Supreme Court noted in Egbert, it “does [not] matter that
existing remedies do not provide complete relief.” Egbert, 596 U.S. at 493 (internal
quotation marks omitted). Instead, “[t]he question whether a given remedy is
adequate is a legislative determination that must be left to Congress, not the federal
courts. So 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 secondguess that calibration by superimposing a Bivens remedy.” Id. at 498. Decker has
not persuaded the Court that the remedial processes available here, and identified by
the Magistrate Judge in the R&R, are so insufficient as to allow him to pursue a
claim under Bivens.
For all of these reasons, Decker’s objections to the Magistrate Judge’s
recommendation to dismiss his Bivens claim are OVERRULED.

22

D
Finally, Decker objects to the Magistrate Judge’s decision to resolve the
Motions to Dismiss without holding a hearing. (See Objections, ECF No. 214,
PageID.1570.) But Decker cites no authority for the proposition that the Magistrate
Judge was required to hold a hearing before ruling on the Motions, and the Court is
aware of none. Decker further objects that the Magistrate Judge has not issued a
scheduling order, but no such order is required until after the Court resolves
Defendants’ Motions to Dismiss. This objection is therefore OVERRULED.
V
For all of the reasons explained above, the objections to the R&R filed by all
parties (ECF Nos. 212, 213, 214) are OVERRULED. The individual Defendants’
Motions to Dismiss Decker’s Bivens claim (ECF Nos. 153, 183) are GRANTED.
The United States’ Motion to Dismiss (ECF No. 188) is DENIED to the extent that
it seeks dismissal of Decker’s trespass claim and GRANTED in all other respects.
The only claim remaining in this action is Decker’s claim against the United States
under the FTCA for trespass.
IT IS SO ORDERED.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: March 26, 2024

23

I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on March 26, 2024, by electronic means and/or
ordinary mail.
s/Holly A. Ryan
Case Manager
[phone]

24