McGill v. Seehase et al

Filing 37

ORDER granting 30 Motion to Dismiss for Failure to State a Claim by Magistrate Judge Jennifer M. Rozzoni. Plaintiffs' claims against the USFS Defendants are dismissed with prejudice. (kms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ETHAN MCGILL,
Plaintiff,
v.

1:24-cv-00835-JMR-KK

ROBERT SEEHASE, HUGH DAVIS,
ALYSSA GOMEZ, A. BENNETT,
JOHN DOE 1, and JOHN DOE 2,
Defendants.
ORDER GRANTING MOTION TO DISMISS
THIS MATTER comes before the Court on defendants Hugh Davis and Robert Seehase’s
(hereinafter, the “USFS Defendants”) Motion to Dismiss. Doc. 30. Plaintiff filed a response.
Doc. 32. The USFS Defendants filed a reply. Doc. 34. The parties have consented to me entering
a final judgment in this matter, pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil
Procedure 73(b). Docs. 11–15. Having reviewed the parties’ submissions and the relevant law,
the Court hereby GRANTS the defendants’ motion because a Bivens excessive force claim is not
available against a United States Forest Service (“USFS”) officer.
I.

Facts 1
This case arises out of allegations of police brutality. Doc. 1-2 at 3–8. On July 3, 2021,

plaintiff Ethan McGill was pulled over by United States Forest Service Officer Hugh Davis for a
traffic infraction. Id. at 3. After a series of events, plaintiff was allegedly punched, kicked, tased,
and had his dreadlocks pulled out by various law enforcement officers, including Officer Davis

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Because this is an order on a motion to dismiss, the Court assumes “the truth of the plaintiff’s
well-pleaded factual allegations and view them in the light most favorable to the plaintiff.” Ridge
at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007).

and Officer Robert Seehase. Because this order turns on a matter of law, it is not necessary to
recount the details of the use of force. But see Doc. 36 (order on the State Defendants’ Motion to
Dismiss detailing the attack).
Plaintiff is suing the USFS Defendants pursuant to Bivens v. Six Unknown Fed. Narcotics
Agents, 403 U.S. 388 (1971) and no other right of action. Doc. 1-2 at 1, 8–19.
II.

Legal Standard
The Court may dismiss a complaint for “failure to state a claim upon which relief can be

granted.” FED. R. CIV. P. 12(b)(6). “To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence
that the parties might present at trial, but to assess whether the plaintiff’s complaint alone is
legally sufficient to state a claim for which relief may be granted.” Smith v. United States, 561
F.3d 1090, 1098 (10th Cir. 2009) (quotation omitted). The Court assumes “the truth of the
plaintiff’s well-pleaded factual allegations and view[s] them in the light most favorable to the
plaintiff.” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007).
III.

Discussion
The USFS Defendants move to dismiss plaintiff’s complaint because a Bivens remedy is

unavailable for Fourth Amendment excessive force claims against USFS officers. Plaintiff
disagrees. While the defendants’ alleged conduct is reprehensible, the Court finds that Bivens is
not an available remedy. See Silva v. United States, 45 F.4th 1134, 1140 (10th Cir. 2022) (noting
that, post-Egbert v. Boule, 596 U.S. 482, 494 (10th Cir. 2022), expanding Bivens “is
impermissible in virtually all circumstances.”).

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In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), the Supreme
Court created a private right of action for plaintiffs whose Fourth Amendment rights were
violated by a federal officer. This broad formulation of a Bivens remedy is “now all but dead.”
See Rowland v. Matevousian, 121 F.4th 1237, 1242 (10th Cir. 2024). Bivens no longer blanketly
applies to “federal officers.” Instead, officers must be differentiated by the agency for which they
work to determine whether a Bivens remedy is available. See Egbert, 596 U.S. at 492; see also
id. at 512 (Sotomayor, J., concurring in part) (accusing the majority opinion in Egbert of
“draw[ing] artificial distinctions between line-level officers of the 83 different federal law
enforcement agencies with authority to make arrests and provide police protection.”).
The Supreme Court has only recognized a Bivens claims in three contexts. Bivens, 403
U.S. at 388 (Fourth Amendment unreasonable search and seizure claims against Federal Bureau
of Narcotic agent); Davis v. Passman, 442 U.S. 228 (1979) (Fifth Amendment Due Process
gender discrimination claim against congressmember); Carlson v. Green, 446 U.S. 14 (1980)
(Eighth Amendment inadequate medical care claim against federal prison official). The Supreme
Court has since “recognized that Bivens, Davis, and Carlson were the mistakes of an ‘ancien
regime’ that was too willing to create implied causes of action.” Silva v. United States, 45 F.4th
1134, 1138 (10th Cir. 2022) (quoting Ziglar v. Abbasi, 582 U.S. 120, 131–32 (2017)).
When deciding whether to allow a Bivens remedy, the Court “engage[s] in a two-step
inquiry.” Hernandez v. Mesa, 589 U.S. 93, 102 (2020). First, the Court asks, “whether the
request involves a claim that arises in a ‘new context’ or involves a ‘new category of
defendants.’” Id. (quoting Corr. Services Corp. v. Malesko, 534 U.S. 61, 68 (2001)). Then, if the
context is new, the Court asks, “whether there are any special factors that counsel hesitation
about granting the extension.” Id. (quoting Abbasi, 582 U.S. at 136) (cleaned up). If the Court

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has a sound “reason to pause before applying Bivens in a new context or to a new class of
defendants,” the Court must decline to extend Bivens. Hernandez, 589 U.S. at 102.
The first prong is satisfied if the case is against a “new category of defendants.”
Hernandez, 589 U.S. at 102. “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.” Id. at 103. To illustrate, in Egbert, the Supreme Court found that a Bivens claim
was unavailable for a Fourth Amendment excessive force claim against a U.S. Border Patrol
agent. Egbert, 596 U.S. at 503 (Gorsuch, J., concurring) (“Candidly, I struggle to see how this set
of facts differs meaningfully from those in Bivens itself.”). Similarly, in Logsdon v. United States
Marshal Serv., the Tenth Circuit held that Bivens was unavailable for a Fourth Amendment
excessive force claim against a United States Marshal. Logsdon v. United States Marshal Serv.,
91 F.4th 1352, 1358 (10th Cir. 2024). After Egbert was decided, courts have declined to extend
excessive force Bivens to new categories of defendants in many contexts. Hernandez v. Causey,
No. 24-60080, 2024 WL 5195629, at *5 (5th Cir. 2024) (declining to extend Bivens to an
excessive force claim against an Immigration and Customs Enforcement agent); Edwards v.
Gizzi, 107 F.4th 81 (2d Cir. 2024) (per curiam) (declining to extend Bivens to an excessive force
claim against court-security officers and U.S. Marshals); Wimberly v. Selent, No. 23-13550, 2024
WL 2845476, at *3 (11th Cir. 2024) (declining to extend Bivens to an excessive force claim
against Department of Homeland Security Investigations agent); Mejia v. Miller, 61 F.4th 663,
668 (9th Cir. 2023) (declining to extend Bivens to an excessive force claim against Bureau of
Land Management officers). But see Snowden v. Henning, 72 F.4th 237, (7th Cir. 2023)
(allowing an excessive force Bivens claim against a DEA agent who operates “under the same
legal mandate as the officers in Bivens—the enforcement of federal drug laws.”).

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As for the second prong, the Court must determine whether “there are any special factors
that counsel hesitation” about extending Bivens. Hernandez, 589 U.S. at 102. For example, if
“there is any reason to think that Congress might be better equipped to create a damages
remedy,” the Court may not extend Bivens. Egbert, 596 U.S. at 493. Further, “if there is an
alternative remedial structure present in a certain case, that alone may limit the power of the
Judiciary to infer a new Bivens cause of action.” Ziglar, 582 U.S. at 137. “A remedy is sufficient
to foreclose a Bivens action, then, so long as Congress or the Executive has created a remedial
process that it finds sufficient to secure an adequate level of deterrence.” 2 Silva, 45 F.4th at 1140
(citation and quotation omitted).
In light of Egbert, the Tenth Circuit stated, “that expanding Bivens is not just ‘a
disfavored judicial activity,’ [Egbert, 596 U.S. at 491] (quoting Abbasi, 137 S. Ct. at 1857), it is
an action that is impermissible in virtually all circumstances.” Silva, 45 F.4th at 1140 (citation
omitted).
A. This case involves a new Bivens context.
Here, the relevant defendants are law enforcement officers employed by the United States
Forest Service, an agency within the United States Department of Agriculture (“USDA”). In the
past, many courts allowed Bivens excessive force claims against USFS officers to proceed
without question. Griego v. United States, No. 1:16-cv-00475-JCH-SCY, 2018 WL 1010621
(D.N.M. Feb. 21, 2018) (this Court awarding $450,000 and granting default judgment against
2

Egbert seemingly overrules precedent from other circuits that held that “[w]hen a remedial
scheme is created entirely by regulation, it does not preclude a Bivens claim.” See, e.g., Johnson
v. Perdue, 862 F.3d 712, 717 (8th Cir. 2017); see also Egbert, 596 U.S. at 525–26 (“By the
Court’s logic . . . the existence of any disciplinary framework, even if crafted by the Executive
Branch rather than Congress, and even if wholly nonparticipatory and lacking any judicial
review, is sufficient to bar a court from recognizing a Bivens remedy.”) (Sotomayor, J.,
concurring in part).
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USFS officer for excessive force Bivens claim); Big Cats Serenity Springs, Inc. v. Rhodes, 843
F.3d 853, 858 (10th Cir. 2016) (authorizing Fourth Amendment Bivens claim against USDA
officer); Van Strum v. Lawn, No. 89-35656, 1991 U.S. App. LEXIS 3719 (9th Cir. 1991)
(unpublished) (authorizing Fourth Amendment search and seizure Bivens claim against USFS
officers); Wasson v. United States, No. 2:15-cv-01279-SU, 2016 WL 11711135, at *7 (D. Ore.
July 26, 2016) (recommending that a Fourth Amendment search and seizure Bivens claim against
a USFS officer survive), adopted in full, Wasson v. United States, No. 2:15-cv-01279-SU, 2016
WL 11711119 (D. Ore. Nov. 1, 2016). However, post-Egbert and perhaps post-Ziglar, a plaintiff
may not bring an excessive force Bivens claim against a USFS officer. 3
USFS officers are a “new category of defendant,” not recognized in the either Bivens,
Davis, or Carlson. See Egbert, 596 U.S. at 492. Plaintiff argues that a Fourth Amendment
excessive force claim against USFS officers does not materially differ from Bivens, which
involved Federal Bureau of Narcotics agents. Doc. 32 at 6–9. However, controlling case law
states otherwise. See Logsdon, 91 F.4th at 1358 (“Mr. Logsdon argues that a new agency does
not create a new Bivens context when the defendants are ‘rank-and-file federal officers.’ . . . We
disagree.”).
The Court agrees with plaintiff that “the fact that the instant case involves officers from
the USFS while Bivens involved agents of the Federal Bureau of Narcotics is not a dispositive
factor that precludes Plaintiff from a remedy under the [Bivens] framework.” Doc. 32 at 7. As

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While this result is troublingly in this alleged factual circumstance, this Court is bound by
Supreme Court and Tenth Circuit precedent. The Supreme Court has decided that it is more
appropriate for Congress to fashion a private right of action against law enforcement officers for
constitutional violations. Egbert, 596 U.S. at 503 (Gorsuch, J., concurring) (“When might a
court ever be ‘better equipped’ than the people’s elected representatives to weigh the ‘costs and
benefits’ of creating a cause of action? It seems to me that to ask the question is to answer it.”).
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such, the Court turns to the second step of the analysis to determine whether “there are any
special factors that counsel hesitation” about expanding Bivens. Hernandez, 589 U.S. at 102.
B. Special factors forbid the Court from extending Bivens to allow excessive force
claims against USFS officers.
Defendants argue that a Bivens claim is precluded because an alternative remedial
structure is in place. Doc. 30 at 13–16. In response, Plaintiff argues that any alternative remedial
structure does “not provide adequate deterrence of wrongdoing.” Doc. 32 at 10. The Court agrees
with the defendants that the available alternative remedial structures preclude an excessive force
Bivens claim against USFS officers. See Ziglar, 582 U.S. at 137.
If an alternative remedy for addressing misconduct exists, that is an “independent ground
for not recognizing a Bivens action.” Logsdon, 91 F.4th at 1359. “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 second-guess that calibration by superimposing a Bivens remedy.
That is true even if a court independently concludes that the Government’s procedures are not as
effective as an individual damages remedy.” Egbert, 596 U.S. at 498 (citation and quotation
omitted).
In Logsdon, the Tenth Circuit held that the U.S. Marshals Service’s internal grievance
procedure and the Department of Justice’s Office of Inspector General investigation procedure
“are adequate alternative remedies,” which preclude extending Bivens. Logsdon, 91 F.4th at
1359. Regarding the U.S. Marshal Service’s internal grievance procedure, the Tenth Circuit
explained:
Individuals may submit a complaint by filling out an online form. . . . “[T]he USMS
may share the information with law enforcement agencies investigating a violation
of law (whether criminal, civil, and/or administrative).” . . . “All complaints of
employee misconduct will be investigated by the appropriate agency or office. . . .
And “[i]ntentional, reckless or negligent violation[s] of rules governing searches
and seizures” are punishable by reprimand or removal. . . .
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Id. at 1360 (citations omitted). Similarly, regarding the Department of Justice’s Office of
Inspector General, the Tenth Circuit noted:
A person can report misconduct “related to” the USMS to OIG by submitting an
online complaint. . . . OIG investigations “sometimes lead to criminal prosecution
or civil or administrative action.” . . . If the OIG does not investigate the allegation,
it may refer the complaint to the internal-affairs office of the relevant DOJ
component (here, the USMS). . . .
Id. (citations omitted). The Logsdon Court further found that “it is not the judiciary’s function to
assess the adequacy of executive orders or legislative remedies in deterring constitutional
violations that might be remedied through a Bivens-type suit.” Id.
Much like the U.S. Marshall Service, the USFS has both an internal procedure for
handling officer misconduct and an Office of Inspector General that is required to investigate
USFS employee misconduct. 4
The USFS internal procedure is administered by the USDA Forest Service Law
Enforcement and Investigations Office of Professional Responsibility (“OPR”). See Law
Enforcement and Investigation, U.S. FOREST SERVICE, U.S. DEPARTMENT OF AGRICULTURE,
https://www.fs.usda.gov/about-agency/contact-us/lei [https://perma.cc/F2XR-UUDK] (last
visited Mar. 7, 2025). Just as in Logsdon, a member of the public may submit a complaint form
online. Complaint Form, FOREST SERVICE LAW ENFORCEMENT & INVESTIGATIONS, https://usdafs-lei.entellitrak.com/etk-usda-fs-lei-

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The USFS Defendants also argue that the Federal Tort Claims Act is an alternate remedy.
Because the Forest Service’s Office of Professional Responsibility and the USDA’s Office of
Inspector General provide an alternate remedy, the Court does not reach the question of whether
suing the United States for a battery under the Federal Tort Claims Act can preclude a Fourth
Amendment excessive force Bivens claim against individual officers. But see Oliva v. Nivar, 973
F.3d 438, 444 (5th Cir. 2020) (declining to extend Bivens to an excessive force claim against a
Veterans Affairs hospital law enforcement officer, in part, because the Federal Tort Claims Act
provided an alternative remedy).
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prod/page.request.do?page=gov.fed.jis.complaint.efile.page.efilecomplaint
[https://perma.cc/F2SS-TSEK] (last visited Mar. 7, 2025). “It is the responsibility of the Office
of Professional Responsibility . . . to conduct or coordinate investigations alleging criminal acts
and/or misconduct involving [Forest Service Law Enforcement and Investigations] personnel.”
Forest Service Manual § 5390.04. 5 The OPR “also conducts reviews of use of force incidents
and may open an investigation if misconduct is suspected.” Id. If an allegation of misconduct “is
sustained, the Assistant Director of OPR will provide the Report of Investigation to appropriate
supervisory personnel and Employee Relations for determination of potential discipline.” Forest
Service Manual § 5393.5. The OPR provides an alternate remedy to Bivens.
Further, the USDA’s Office of Inspector General (“OIG”) is statutorily required to
“conduct and supervise audits and investigations” relating to the USFS employees. 5 U.S.C. §
402(b)(1); see also 5 U.S.C. § 404 (establishing the duties of the Inspector General). The OIG
has established both a hotline and an online complaint portal for the “general public to report . . .
misconduct by a USDA employee,” which includes USFS employees. USDA Departmental
Regulation 1700-002, § 4(e)(2)(f). The OIG and the OPR also coordinate with one another.
Forest Service Manual § 5393.1. The OIG conducts criminal investigations into USFS employee
misconduct. Id. Just like the U.S. Marshall Service’s OIG in Logsdon, the USDA’s OIG provides
an alternative remedy to Bivens.
While not completely identical, the Court sees no meaningful distinction between the two
alternate remedies available in Logsdon and the two alternate remedies described above. See also
House v. National Park Service, No. 22-970 SCY/KK, 2024 WL 3401049, at *5 (D.N.M. July

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The section of the U.S. Forest Service Manual detailing the duties of the internal Office of
Professional Responsibility is available at https://www.fs.usda.gov/about-agency/regulationspolicies/manual/5390-office-professional-responsibility (last visited Mar. 7, 2025).
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12, 2024) (finding that the National Park Service’s Office of Professional Responsibility and
their corresponding Office of Inspector General each provided alternate remedies to an excessive
force Bivens claim); Mejia, 61 F.4th at 669 (finding that the Bureau of Land Management’s
Office of Inspector General provided an alternate remedy to an excessive for Bivens claim); Cain
v. Rinehart, No. 22-1893, 2023 WL 6439438 (6th Cir. 2023) (same as to the U.S. Marshal
Service’s Office of Inspector General). Plaintiff argues that these remedies “do not provide
adequate deterrence of wrongdoing,” but that is not for the Court to decide. As the USFS
Defendants point out, “[t]he adequacy of available alternative remedial structures has no bearing
on a Court’s consideration of whether the existence of alternative structures evinces Congress’s
doubts about the necessity of a Bivens remedy.” Doc. 33 at 9 (citing Egbert, 596 U.S. at 498). In
this case, the OPR and OIG provide alternative remedial process to Bivens. As such, special
factors preclude the Court from extending Bivens in this circumstance.
IV.

Conclusion
Plaintiff fails to state a claim upon which relief can be granted against the USFS

Defendants because a Bivens claim is not available for excessive force claims against USFS
officers. See FED. R. CIV. P. 12(b)(6). As such, the Court hereby GRANTS the USFS
Defendants’ Motion to Dismiss (Doc. 30). Plaintiffs’ claims against the USFS Defendants are
dismissed with prejudice.

______________________________
JENNIFER M. ROZZONI
United States Magistrate Judge
Presiding by Consent

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