Stevens et al v. Hayes et al

Filing 57

REPORT AND RECOMMENDATIONS re 14 Motion to Dismiss filed by State of New Mexico, William Richardson, 36 Motion to Dismiss filed by United States Of America, United States, 37 Motion to Dismiss, filed by John F. Smith, Barack Obama, Abigail Kimb ell, Tom Tidwell, Victor Morales, United States Department of Agriculture, Joseph Hayes, United States Forest Service, Tom Vilsack, 40 Motion to Dismiss filed by Victor Morales, 38 Motion to Dismiss filed by United States Of America, United States, 44 Motion to Dismiss filed by Joseph Hayes. Signed by Judge Andrew W. Austin. (jk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
JERRY STEVENS, DEBORAH STEVENS, §
AND DAVID GEOFFRION,
§
§
Plaintiffs,
§
§
V.
§
§
JOSEPH HAYES, VICTOR MORALES,
§
JOHN F. SMITH, UNKNOWN FOREST
§
SERVICE OFFICERS, TOM TIDWELL, §
ABIGAIL KIMBELL, UNITED STATES §
FOREST SERVICE, TOM VILSACK,
§
UNITED STATES DEPARTMENT OF
§
AGRICULTURE, WILLIAM
§
RICHARDSON, STATE OF NEW
§
MEXICO, BARACK OBAMA, UNITED
§
STATES OF AMERICA,
§
§
Defendants.
§

A-11-CA-550 LY

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
Before the Court are six motions to dismiss filed by the Defendants in the above-styled case.

The motions before the Court, along with the responsive pleadings, are:
•

Motion to Dismiss by State of New Mexico and William Richardson, filed December 1,
2011 (Clerk’s Dkt. #14); Plaintiffs’ Response to Motion to Dismiss by State of New Mexico
and William Richardson, filed December 15, 2011 (Clerk’s Dkt. #33); Reply in Support of
Motion to Dismiss by Defendants State of New Mexico and William Richardson, filed
December 27, 2011 (Clerk’s Dkt. #39);

•

Corrected Motion to Dismiss Plaintiff Geoffrion’s Action Against the United States by
the United States of America, filed December 19, 2011 (Clerk’s Dkt. #36); Plaintiff
Geoffrion’s Response to Motion to Dismiss by USOA, filed January 3, 2012 (Clerk’s Dkt.
#41); Defendant United States’ Reply in Support of Motion to Dismiss Plaintiff Geoffrion’s
Action Against the United States, filed January 17, 2012 (Clerk’s Dkt. #46);

•

Motion to Dismiss Plaintiffs Jerry and Deborah Stevens’ Action Against the United
States of America, filed December 19, 2011 (Clerk’s Dkt. #38); The Stevens’ Response
to Motion to Dismiss by the United States of America, filed January 3, 2012 (Clerk’s Dkt.
#43); Defendant United States’ Reply in Support of Motion to Dismiss Stevens’ Action
Against the United States, filed January 17, 2012 (Clerk’s Dkt. #47);

•

Federal Defendants’ Motion to Dismiss, filed December 19, 2011 (Clerk’s Dkt. #37);
Plaintiffs’ Response to Federal Defendants’ Motion to Dismiss, filed January 3, 2012
(Clerk’s Dkt. #42); Federal Defendants’ Reply in Support of Motion to Dismiss, filed
January 17, 2012 (Clerk’s Dkt. #45);

•

Defendant Hayes’ Motion to Dismiss, filed January 6, 2012 (Clerk’s Dkt. #44);
Plaintiffs’ Response to Motion to Dismiss by Hayes, filed January 20, 2012 (Clerk’s Dkt.
#49); Deborah Stevens’ Declaration in Support of Plaintiffs’ Response to Motion to Dismiss
by Hayes, filed January 20, 2012 (Clerk’s Dkt. #50); Defendant Hayes’ Reply in Support of
His Motion to Dismiss, February 3, 2012 (Clerk’s Dkt. #53);

•

Defendant Morales’ Motion to Dismiss, filed January 3, 2012 (Clerk’s Dkt. #40);
Plaintiffs’ Response to Motion to Dismiss by Morales, filed January 17, 2012 (Clerk’s Dkt.
#48); and Defendant Morales’ Reply in Support of his Motion to Dismiss, filed February 1,
2012 (Clerk’s Dkt. #52).

The District Court referred the above motions to the undersigned Magistrate Judge for a Report and
Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72, and
Rule 1(d) of Appendix C of the Local Rules of the United States District Court for the Western
District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges.
After reviewing the parties’ briefs, relevant case law, as well as the entire case file, the undersigned
issues the following Report and Recommendation to the District Court.
I. BACKGROUND
On June 30, 2009, Plaintiffs Jerry Stevens, Deborah Stevens, and David Geoffrion
(collectively “Plaintiffs”) were traveling to the annual Rainbow Gathering in the Santa Fe National
Forest, located in the state of New Mexico. (Clerk’s Dkt. #5 at 10). Plaintiffs allege a number of
Forest Service Law Enforcement Officers (“USFS Agents”) detained them for a purported traffic
2

violation and then conducted a search after a drug-sniffing dog alerted to their vehicle. (Id. at 10-22).
These officers include Joseph Hayes (“Hayes”), Victor Morales (“Morales”), and other unnamed
officers.
On January 4, 2010, Deborah Stevens presented an administrative claim to the United States
Forest Service (“USFS”) in relation to the June 30, 2009, traffic stop. (Clerk’s Dkt. #36, Ex. 2,
Attach. A). On June 30, 2011, Plaintiffs filed suit against the thirteen named defendants and an
unspecified number of unknown USFS Agents. (Clerk’s Dkt. #1.) On July 5, 2011, Geoffrion
presented an administrative claim to the USFS in relation to the June 30, 2009, traffic stop. (Clerk’s
Dkt. #36, Ex. 2, Attach. E). On October 17, 2011, Plaintiffs filed an Amended Complaint. (Clerk’s
Dkt. #5). In the Amended Complaint, Plaintiffs bring claims under (1) 42 U.S.C. §§ 1983 and 1985;
(2) Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999 (1971); and (3) the
Federal Tort Claims Act (“FTCA”).1 (Id. at 23, 27, and 75).
1

The State of New Mexico and Governor William Richardson move to dismiss under the
impression that Plaintiffs bring claims against them under the New Mexico Tort Claims Act, N.M.
STAT. ANN. § 41-4, et. seq. (“NMTCA”); however, no such claim is made in Plaintiffs’ Amended
Complaint. Only two references are made to the NMTCA in the amended complaint, and both refer
to the NMTCA only insofar as it is related to the FTCA or § 1983 claims.
Specifically, under the heading “FTCA,” Plaintiffs’ amended complaint states, “if USOA . . .
were a private party, USOA would be liable to Plaintiffs under the applicable laws of the Territory.
See N.M. STAT. ANN. § 41-4-12.” (Clerk’s Dkt. #5 at 27-28). Nothing in this reference to the
NMTCA indicates that Plaintiffs seek to sue the State of New Mexico or Governor Richardson under
the NMTCA. Next, under the heading “Waiver of Immunity,” Plaintiffs’ Amended Complaint
states, “The Territory waives immunity for claims of this nature. N.M. STAT. ANN. § 41-4-4
(1978).” (Amend. Compl. at 10). In the same section, Plaintiffs state they “assert claims under the
Federal Tort Claims Act, Bivens, the local laws of the Territory, and the theory of deliberate
indifference from Brown.” The phrase, “local laws of the Territory,” is insufficient to indicate
Plaintiffs make a claim under the NMTCA. Indeed, Governor Richardson is only mentioned in one
page of the Amended Complaint under the heading “Deliberate Indifference” referring to Plaintiffs’
§ 1983 “failure to train” claims. (Clerk’s Dkt. #5 at 99). Furthermore, in response to the State of
New Mexico and Governor Richardson’s Motion to Dismiss argument regarding the NMTCA’s
3

In their §§ 1983, 1985 and Bivens claims, Plaintiffs bring unreasonable search and seizure
allegations against the USFS agents as well as “failure to train” claims against “all those holding
relevant administrative positions above them.”2, 3, 4 (Clerk’s Dkt. #5 at 23, 75-98, 99-100). Regarding
the “failure to train” claims, Plaintiffs list the following Defendants as liable based on their failure
to train the USFS agents: the United States Forest Service (“USFS”) and Chiefs Tom Tidwell
(“Chief Tidwell”) and Abigail Kimbell (“Chief Kimbell”); the United States Department of
Agriculture (“USDA”) and Secretary Tom Vilsack (“Secretary Vilsack”); the State of New Mexico
(“New Mexico”) and Governor William Richardson (“Governor Richardson”); the United States of

requirement to submit a tort claim letter, Plaintiffs refer to the FTCA and state “[t]here are no tort
claim letters to NEW MEXICO. None is needed.” (Clerk’s Dkt. #33 at 8-9). Thus, the references
to the NMTCA in Plaintiffs’ Amended Complaint do not indicate that Plaintiffs seek to bring a claim
against the State of New Mexico or Governor Richardson under the NMTCA, and the Court need
not address the State of New Mexico and Governor Richardson’s arguments regarding the NMTCA.
2

Plaintiffs state, “Respondeat superior is the nature of the FTCA claims. Everything else is
individual liability.” (Clerk’s Dkt. #42 at 5). The undersigned thus treats all the 42 U.S.C. §§ 1983
and 1985 and Bivens claims as claims based upon individual rather than supervisory theories of
liability.
3

Plaintiffs conflate “deliberate indifference” with “failure to train.” Under the heading,
“deliberate indifference,” Plaintiffs state that Defendants are liable “for the damages caused by that
failure to train these Forest Service officers.” [emphasis added] (Clerk’s Dkt. #5 at 99-100). As
“deliberate indifference” is not a claim but a standard of fault that applies in certain causes of action,
including “failure to train” claims under § 1983 and Bivens, the undersigned treats Plaintiffs claims
of “deliberate indifference” as “failure to train” claims under § 1983 and Bivens.
4

Plaintiffs attempt to portray the USFS Agents and their federal superiors as “state” actors
under § 1983; however, this is unnecessary as Plaintiffs also bring suit against the federal officials
in their individual capacities pursuant to Bivens. See Stephenson v. Reno, 28 F.3d 26, 26 n. 1 (5th
Cir. 1994) (civil rights violations by federal defendants are construed as brought pursuant to Bivens).
Accordingly, the undersigned will treat Plaintiffs’ civil rights violation claims against the State of
New Mexico and Governor Richardson as § 1983 claims and Plaintiffs’ civil rights violation claims
against the federal defendants as Bivens claims.
4

America (“United States”) and President Barack Obama (“President Obama”); and John F. Smith
(“Smith”).5, 6 (Clerk’s Dkt. #5 at 99-101).
Regarding their FTCA claim, Plaintiffs bring suit against the United States of America.
(Clerk’s Dkt. #5 at 27). They list numerous claims based on 18 U.S.C. §§ 241 and 242 under the
headings, “Torts arising from criminal conduct—State” and “Torts arising from criminal
conduct—Federal.” (Id. at 28 and 48). Under “Torts arising from criminal conduct—State,”
Plaintiffs claims include assault, aggravated assault, battery, false imprisonment, public nuisance,
interference with communications, disturbing lawful assembly, breaking and entering, unlawful
taking of a vehicle, injuring or tampering with a motor vehicle, and criminal damage to property.
(Id. at 28-47). Under “Torts arising from criminal conduct—Federal,” Plaintiffs claims include
criminal violation of transportation privileges and criminal violation of the right to be free from
unreasonable search and seizure. (Id. at 48-73).
Plaintiffs seek actual and punitive damages as well as injunctive relief. As injunctive relief,
Plaintiffs request the Court order the USDA and/or the USFS publish a map of the roadways
designated for motor vehicle use on the Forest Service website. (Id. at 101-102). Notably, Plaintiffs
specify that, in the event the dollar does not “survive the duration of this suit,” they demand payment
of damages in gold. (Id. at 9).

5

Although Smith is a named defendant, he is no where mentioned in the Amended Complaint
beyond the case dial. However, Federal Defendants’ Motion to Dismiss reveals that Smith was the
USFS Regional Patrol Commander and presumes that he is included Plaintiffs’ “failure to train”
claims. (Clerk’s Dkt. #37 at 5-6). As such, the undersigned will include Smith in the Plaintiffs’
“failure to train” claims.
6

Plaintiffs state that they bring suit against the named Federal Officials in their individual and
not official capacities. (Clerk’s Dkt. #42 at 1-2). Accordingly, the undersigned will not consider any
arguments relating to Bivens claims against the Federal Officials in their official capacities.
5

II. STANDARD OF REVIEW
A.

Lack of Subject-Matter Jurisdiction
Under Federal Rule of Civil Procedure 12(b)(1), a defendant may assert lack of subject-

matter jurisdiction as a defense to a claim for relief in federal court. “A case is properly dismissed
for lack of subject-matter jurisdiction when the court lacks the statutory or constitutional power to
adjudicate the case.” Home Builders Ass'n, Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir.
1998) (quoting Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996)).
The court must address a Rule 12(b)(1) jurisdictional challenge before addressing a challenge on the
merits to prevent “a court without jurisdiction from prematurely dismissing a case with prejudice.”
Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).
The “plaintiff bears the burden of proof that jurisdiction does in fact exist.” Arena v.
Graybar Elec. Co., Inc., 669 F.3d 214, 223 (5th Cir. 2012) (quoting Menchaca v. Chrysler Credit.
Corp., 613 F.2d 507, 511 (5th Cir. 1980)). In determining whether subject-matter jurisdiction exists,
the court must:
take the well-pled factual allegations of the complaint as true and view them in the
light most favorable to the plaintiff. . . . [U]nder Rule 12(b)(1), the court may find a
plausible set of facts by considering any of the following: (1) the complaint alone; (2)
the complaint supplemented by the undisputed facts evidenced in the record; or (3)
the complaint supplemented by undisputed facts plus the court's resolution of
disputed facts.
Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008) (citations and internal punctuation omitted).
B.

Lack of Personal Jurisdiction
Under Federal Rule of Civil Procedure 12(b)(2), a defendant may assert lack of personal

jurisdiction as a defense to a claim for relief in federal court. As with subject-matter jurisdiction,

6

Rule 12(b)(2) personal jurisdiction challenges must be dealt with before addressing a challenge on
the merits to prevent a court without jurisdiction from prematurely dismissing a case with prejudice.
See Guidry v. U.S. Tobacco Co., Inc. 188 F.3d 619, 623 n. 2 (5th Cir. 1999) (“A court must find
jurisdiction, both subject matter and personal, before determining the validity of a claim”).
A court must consider both constitutional issues as well as the applicable statutes in resolving
the issue of personal jurisdiction. In this case, the Court must consider whether: (1) the Texas
long-arm statute creates personal jurisdiction over the defendant; and (2) the exercise of personal
jurisdiction is consistent with the due process guarantees of the United States Constitution. Revell
v. Lidov, 317 F.3d 467, 470 (5th Cir. 2002). The Texas long-arm statute, which authorizes the
exercise of jurisdiction over a nonresident defendant who does business in Texas, extends to the
limits of due process. Access Telecom, Inc. v. MCI Telecomm. Corp., 197 F.3d 694, 716 (5th Cir.
1999); see also CSR Ltd. v. Link, 925 S.W.2d 591, 594 (Tex. 1996) (Texas Supreme Court has
repeatedly interpreted long-arm statute "to reach as far as the federal constitutional requirements of
due process will allow"). Accordingly, only the due process prong of the inquiry must be addressed.
Kelly v. Syria Shell Petroleum Dev. B.V., 213 F.3d 841, 854 (5th Cir. 2000).
Due process for jurisdictional purposes requires that the defendant must have sufficient
"minimum contacts" with the forum state such that the maintenance of the suit does not offend
“traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326
U.S. 310, 316 (1945). A defendant establishes minimum contacts with a state if “the defendant's
conduct and connection with the forum state are such that [they] should reasonably anticipate being
haled into court there.” Burger King, 471 U.S. at 474 (quoting World-Wide Volkswagen v. Woodson,
444 U.S. 286, 297 (1980)). There must be some act whereby the defendant “purposely avails itself
7

of the privilege of conducting activities within the forum state, thus invoking the benefits and
protections of its laws.” Id. at 475.
These "minimum contacts" may be analyzed in terms of general jurisdiction or specific
jurisdiction. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984); Central
Freight Lines Inc. v. APA Transport Corp., 322 F.3d 376, 381 (5th Cir. 2003). General jurisdiction
is proper when the defendant has other "continuous and systematic" contacts with the forum
unrelated to the pending litigation. Lewis v. Fresne, 252 F.3d 352, 358 (5th Cir. 2001). Specific
jurisdiction exists when the contacts with the forum state arise from, or are directly related to, the
cause of action. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985) (jurisdiction appropriate
where activities "purposefully directed" at residents of forum state and litigation arises out of or
relates to those activities).
The plaintiff bears the burden of alleging facts sufficient to establish personal jurisdiction
over a nonresident defendant. Mink v. AAAA Dev. LLC, 190 F.3d 333, 335 (5th Cir. 1999); see also
Felch v. Transportes Lar-Mex SA de CV, 92 F.3d 320, 326 (5th Cir. 1996) (where allegations are in
dispute, party seeking to invoke jurisdiction bears burden of establishing sufficient contacts by
nonresident defendant). The court must accept as true the uncontroverted allegations in the complaint
and resolve in favor of the plaintiff any factual conflicts posed by the affidavits submitted. Alpine
View Co. Ltd. v. Atlas Copco AB, 205 F.3d 208, 215 (5th Cir. 2000).
C.

Venue
Under Federal Rule of Civil Procedure 12(b)(3), a defendant may assert improper venue as

a defense to a claim for relief in federal court. Generally, venue is determined by 28 U.S.C.
§1391(b), which provides:
8

A civil action wherein jurisdiction is not founded solely on diversity of citizenship
may . . . be brought only in (1) a judicial district where any defendant resides, if all
defendants reside in the same State, (2) a judicial district in which a substantial part
of the events or omissions giving rise to the claim occurred . . . or (3) a judicial
district in which any defendant may be found, if there is no district in which the
action may otherwise be brought.
28 U.S.C. §1391(b). “[T]he district court of a district in which is filed a case laying venue in the
wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any
district or division in which it could have been brought.” 28 U.S.C. § 1406(a).
D.

Insufficient Service of Process
Under Federal Rule of Civil Procedure 12(b)(5), a defendant may assert insufficient service

of process as a defense to a claim for relief in federal court. The Federal Rules of Civil Procedure
govern the service requirements regarding the summons and the complaint:
If a defendant is not served within 120 days after the complaint is filed, the court—on
motion or on its own after notice to the plaintiff—must dismiss the action without
prejudice against that defendant or order that service be made within a specified time.
But if the plaintiff shows good cause for the failure, the court must extend the time
for service for an appropriate period.
FED . R. CIV . P. 4(m). Rule 4(m) permits a district court to dismiss a case without prejudice if a
plaintiff fails to comply with its mandates. Millan v. USAA Gen. Indem. Co., 546 F.3d 321, 325 (5th
Cir. 2008).
E.

Failure to State a Claim
Under Federal Rule of Civil Procedure 12(b)(6), a defendant may assert failure to state a

claim upon which relief can be granted as a defense to a claim for relief in federal court. When
evaluating a motion to dismiss under Rule 12(b)(6) the complaint must be liberally construed in
favor of the plaintiff and all facts pleaded therein must be taken as true. Leatherman v. Tarrant Cnty.

9

Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993); Baker v. Putnal, 75 F.3d
190, 196 (5th Cir. 1996). Although FED . R. CIV . P. 8 mandates only that a pleading contain a “short
and plain statement of the claim showing that the pleader is entitled to relief,” this standard demands
more than unadorned accusations, “labels and conclusions,” “a formulaic recitation of the elements
of a cause of action,” or “naked assertion[s]” devoid of “further factual enhancement.” Bell Atlantic
v. Twombly, 550 U.S. 544, 555-57 (2007). Rather, a complaint must contain sufficient factual
matter, accepted as true, to “state a claim to relief that is plausible on its face.” Id. at 570.
The Supreme Court has recently made clear this plausibility standard is not simply a
“probability requirement,” but imposes a standard higher than “a sheer possibility that a defendant
has acted unlawfully.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). The standard is properly
guided by “[t]wo working principles.” Id. First, although "a court must accept as true all of the
allegations contained in a complaint," that "tenet" "is inapplicable to legal conclusions" and
"[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice." Id. at 1949-50. Second, "[d]etermining whether a complaint states a plausible
claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its
judicial experience and common sense." Id. at 1950. Thus, in considering a motion to dismiss the
court must initially identify pleadings that are no more than legal conclusions not entitled to the
assumption of truth, then assume the veracity of well-pleaded factual allegations and determine
whether those allegations plausibly give rise to an entitlement to relief. If not, “the complaint has
alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. (quoting FED . R. CIV .
P. 8(a)(2)).

10

III. ANALYSIS
A.

FTCA Claims Against the United States
Plaintiffs seek to pursue claims against the United States pursuant to the FTCA. (Clerk’s Dkt.

#5 at 27). The United States seeks to dismiss Plaintiffs’ FTCA claims on a number of grounds: (1)
lack of subject-matter jurisdiction because the United States enjoys sovereign immunity from
constitutional torts; (2) insufficient service of process; and (3) Plaintiff Geoffrion’s failure to state
a claim.
1.

Lack of Subject-Matter Jurisdiction

The United States moves for dismissal for lack of subject-matter jurisdiction pursuant to
Federal Rule of Civil Procedure 12(b)(1). (Clerk’s Dkt. #36 at 9 and #38 at 5). Specifically, the
United States argues that the Court lacks subject-matter jurisdiction regarding Plaintiffs’ FTCA
claims because the United States enjoys sovereign immunity from constitutional torts, which
Plaintiffs appear to pursue.7
Although Plaintiffs list several criminal offenses in the FTCA section of their Amended
Complaint, such offenses are not causes of action under the FTCA. For example, courts have held
that a claim under 18 U.S.C. §§ 241 and 242, is not actionable under the FTCA. See, e.g.,
Abou-Hussein v. Gates, 657 F.Supp.2d 77, 81 (D.D.C. 2009) (dismissing complaint and holding that
18 U.S.C. § 241 does not give rise to a civil cause of action), aff’d, 2010 WL 2574084 (D.C. Cir.
2010), cert. denied, 131 S.Ct. 1055 (U.S. Jan. 24, 2011); Shahin v. Darling, 606 F.Supp.2d 525, 538
(D. Del. 2009) (dismissing complaint and holding that 18 U.S.C. §§ 241-242 do not give rise to a

7

As the United States points out, Plaintiffs’ Amended Complaint lacks a clear statement of
what claims are asserted against the United States. (Clerk’s Dkt. #38 at 5).
11

civil cause of action), aff’d, 350 F.App’x 605, 607 (3rd Cir. 2009), cert. dismissed, 131 S.Ct. 381
(U.S. Oct. 4, 2010); accord Gipson v. Callahan, 18 F.Supp.2d 662, 668 (W.D. Tex. 1997). While
the FTCA waives sovereign immunity for certain common-law torts specified in the FTCA, Plaintiffs
do not bring claims based on those torts. And to the extent that Plaintiffs make claims for
constitutional torts, the United States has not waived its sovereign immunity. F.D.I.C. v. Meyer, 510
U.S. 471, 475 (1994).

Indeed, Plaintiffs agree that “the FTCA doesn’t extend waiver to

‘constitutional’ torts.” (Clerk’s Dkt. #36 at 7). Because the claims Plaintiffs state against the United
States are not within the category of claims for which sovereign immunity has been waived by the
FTCA, Plaintiffs’ FTCA claims should be dismissed without prejudice for lack of subject-matter
jurisdiction.
2.

Insufficient Service of Process

The United States argues that, even if the Court did have subject-matter jurisdiction over
Plaintiffs’ FTCA claims, the Court should dismiss them for insufficient service of process pursuant
to Federal Rule of Civil Procedure 12(b)(5). (Clerk’s Dkt. #36 at 8 and #38 at 4). Specifically, the
United States alleges that Deborah Stevens attempted to personally effect service on the United
States by mail, violating Rule 4(c)(2)’s requirement that someone other than a party effect service.
FED . R. CIV . P. 4(c)(2). Plaintiffs respond that they hired the United States Postal Service to provide
service, and thus service was not effected by a party. (Clerk’s Dkt. #43 at 2, #41 at 6). Plaintiffs’
argument is erroneous. See Constien v. United States, 628 F.3d 1207, 1213 (10th Cir. 2010)
(upholding dismissal because “[e]ven when service is effected by use of the mail, only a nonparty
can place the summons and complaint in the mail.”); Reading v. United States, 506 F.Supp.2d 13,
19 (D.D.C. 2007) (upholding dismissal where the Court found “no authority . . . for the proposition
12

that Congress ever contemplated carving a loophole into the procedural rules to permit a plaintiff to
serve a defendant by indirectly effectuating service through the postal service”).
In response, Plaintiffs do not offer to effect proper service but instead criticize the case law,
asserting that a lesson in “[agency] even needs to be taught to the appellate courts,” referring to the
Constien case. (Clerk’s Dkt. #41 at 6 and #43 at 2). Accordingly, Plaintiffs’ FTCA claims against
the United States should be dismissed without prejudice for insufficient service of process.
3.

Geoffrion’s Failure to Present a Claim

The United States further argues that, even if the Court did have subject-matter jurisdiction
over Plaintiffs’ FTCA claims and Plaintiffs had sufficiently served process, Geoffrion’s FTCA claim
is permanently barred because he failed to timely submit an administrative claim to the USFS.8
The FTCA requires the presentment of a claim before an action can be filed. See 28 U.S.C.
§ 2675(a) (claimant must first present claim to appropriate agency and be denied before an action
may be instituted). “Noncompliance with section 2675 deprives a claimant of federal court
jurisdiction over his or her claim.” Adams v. United States, 615 F.2d 284, 290 (5th Cir. 1980).
Furthermore, the claim must be presented within two years after the claim accrues. See 28 U.S.C.
§ 2401(b) (“tort claim against the United States shall be forever barred unless it is presented in
writing to the appropriate Federal agency within two years after such claim accrues”). Geoffrion’s
claim accrued on the date of the traffic stop, June 30, 2009. See In re FEMA Trailer Formaldehyde
Prods. Liability Litig., 646 F.3d 185, 189 (5th Cir. 2011) (“tort action under the FTCA accrues when

8

The United States does not move to dismiss the Stevens’ claim on this basis as Deborah
Stevens did timely submit an administrative claim to the USFS.
13

the plaintiff knows or has reason to know of the alleged injury that is the basis of the action”). Thus,
Geoffrion was required to present his administrative claim to the USFS on or before June 30, 2011.
Geoffrion mailed his administrative claim on June 30, 2011. (Clerk’s Dkt. #36, Ex. 2, Attach.
E at 1, 7). Geoffrion’s administrative claim was received by the USFS on July 5, 2011. (Clerk’s Dkt.
#36, Ex. 2 ¶ 8, Attach. E). The date of receipt—not the date of mailing—is the date of presentment.
See Drazan v. United States, 762 F.2d 56, 58 (7th Cir. 1985) (“mailing is not presenting; there must
be receipt”). Therefore, Geoffrion’s administrative claim is untimely, and “forever barred,” and
dismissal is appropriate. Cook v. United States, 978 F.2d 164, 166 (5th Cir. 1992) (“Furnishing
notice of claim to appropriate federal agency is jurisdictional prerequisite to filing suit under
FTCA.”); McAfee v. 5th Circuit Judges, 884 F.2d 221, 222 (5th Cir. 1989) (explaining that
“[e]xhaustion of administrative remedies is jurisdictional prerequisite to suit and holding that a
failure to comply with Section 2675 renders the district court without jurisdiction). Accordingly,
if the Court did have subject-matter jurisdiction over this claim, Geoffrion’s FTCA claim against the
United States regarding the traffic stop incident should be dismissed with prejudice. However, since
the Court lacks subject-matter jurisdiction, both Geoffrion and the Stevens’ FTCA claims against
the United States regarding the traffic stop incident should be dismissed without prejudice.
B.

Sections 1983 and 1985 Claims Against the New Mexico Defendants
Plaintiffs bring §§ 1983 and 1985 claims against the State of New Mexico and Governor

Richardson in his individual capacity (collectively “New Mexico Defendants”) for “failure to train”
the Forest Service officers who detained them.9 (Clerk’s Dkt. #5 at 99). The New Mexico

9

Plaintiffs state they are pursuing claims against Governor Richardson solely in his individual
capacity and not his official capacity. (Clerk’s Dkt. #33 at 3).
14

Defendants move to dismiss all claims asserted by Plaintiffs against them. (Clerk’s Dkt. #14 at 1).
Specifically, the New Mexico Defendants move to dismiss Plaintiffs’ action against them because
(1) the Eleventh Amendment immunizes the State of New Mexico from suit; (2) the Court lacks
personal jurisdiction over Governor Richardson; (3) Plaintiffs have filed this action in an improper
venue; (4) Governor Richardson enjoys qualified immunity; and (5) Plaintiffs fail to state a claim
against the New Mexico Defendants.
1.

Lack of Subject-Matter Jurisdiction

The New Mexico Defendants argue that the Eleventh Amendment immunizes the State of
New Mexico from suit. (Clerk’s Dkt. #14 at 2). Under the Eleventh Amendment to the United State
Constitution, an unconsenting state is immune from suits brought in federal courts by her own
citizens as well as by citizens of another state. Edelman v. Jordan, 415 U.S. 659, 663, 94 S.Ct. 1347,
1355 (1974). The New Mexico Defendants point out that “Section 1983 ‘does not provide a federal
forum for litigants who seek a remedy against a State for alleged deprivations of civil liberties. The
Eleventh Amendment bars such suits unless the State has waived its immunity.’” (Id.) (citing Will
v. Mich. Dep’t of State Police, 491 U.S. 58, 66 (1989)).
In response, Plaintiffs argue there is “no commercial ‘immunity’ of any type, kind, or nature
where there are crimes committed,” nor is there immunity “for criminal conduct” or “criminal
violations of rights.” (Clerk’s Dkt. #33 at 2). Plaintiffs further argue that immunity is waived where
the claim is “deliberate indifference.” (Id. at 3). Regarding Plaintiffs’ criminal conduct arguments,
the State of New Mexico responds that these arguments are inapplicable in the present action as it
is a civil suit, and all claims against the State of New Mexico are based in tort and/or civil rights
violations for which no immunity has been waived. (Clerk’s Dkt. #39 at 1, n. 2). The State of New
15

Mexico specifically points out that “failure to train” is not considered criminal conduct in any case,
statute or other law. (Id.). The New Mexico Defendants are correct.
Regarding Plaintiffs’ deliberate indifference argument, Plaintiffs argue that “immunity” is
waived where there exists a claim of deliberate indifference, citing Sutton v. Utah State Sch. for Deaf
& Blind, 173 F.3d 1226, 1239 (10th Cir. 1999). (Clerk’s Dkt. #33 at 3). Sutton is not on point,
however. In Sutton the court found that the state waived its immunity by removing the case to
federal court, thereby consenting to federal jurisdiction—no mention is made of any waiver as a
result of a claim of deliberate indifference. Sutton, 173 F.3d at 1234. Thus, Plaintiffs’ deliberate
indifference argument fails to demonstrate the State of New Mexico waived its immunity. As
Plaintiffs have failed to demonstrate that the State of New Mexico waived its sovereign immunity,
Plaintiffs’ §§ 1983 and 1985 claims against the State of New Mexico should be dismissed without
prejudice.10
2.

Personal Jurisdiction Over Governor Richardson

Governor Richardson moves to dismiss for lack of personal jurisdiction, contending that he
has not availed himself of this Court’s jurisdiction. (Clerk’s Dkt. #14 at 9). Plaintiffs respond that
Governor Richardson should expect to be hailed into court in any state because he failed to train

10

Although the New Mexico Defendants state they move to dismiss with prejudice, a
dismissal based on Eleventh Amendment immunity takes place before weighing the merits, and thus
cannot result in dismissal with prejudice. See Ramming, 281 F.3d at 161 (“When a Rule 12(b)(1)
motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule
12(b)(1) jurisdictional attack before addressing any attack on the merits”); Warnock v. Pecos Cnty.,
Tex., 88 F.3d 341, 343 (5th Cir. 1996) (“Because [Eleventh Amendment] sovereign immunity
deprives a court of jurisdiction, the claims barred by sovereign immunity can be dismissed only
under Rule 12(b)(1) and not with prejudice”).

16

USFS officers regarding the enforcement of state laws in a national forest area visited by people from
all over the world. (Clerk’s Dkt. #33 at 10). Aside from the allegation Governor Richardson has
contacts with Texas because he failed to train the USFS Agents, Plaintiffs admit that they “know of
no other contacts [Governor Richardson] has with [Texas] relevant to this matter.” (Clerk’s Dkt. 33
at 10). This is patently insufficient to demonstrate the existence of general jurisdiction over the
governor, and thus the Court lacks general jurisdiction over the claims against Governor Richardson.
Concerning specific jurisdiction, “due process requires (1) minimum contacts by the
defendant purposefully directed at the forum state, (2) a nexus between the defendant's contacts and
the plaintiff's claims, and (3) that the exercise of jurisdiction over the defendant be fair and
reasonable.” ITL Intern., Inc. v. Constenla, S.A., 669 F.3d 493, 498 (5th Cir. 2012). Plaintiffs claim
Governor Richardson has minimum contacts with Texas because he failed to train the USFS Agents
regarding New Mexico law in national forest areas, which are visited by people from every state.
(Clerk’s Dkt. 33 at 10). The mere allegation that Governor Richardson failed to train federal
employees is inadequate to demonstrate Governor Richardson purposefully availed himself of the
privilege of conducting activities within Texas specific to these claims. Plaintiffs cite no legal
support for the proposition that the governor of a state could expect to be sued based on a tourist visit
to his or her state. As such, exercise of personal jurisdiction over Governor Richardson would be
neither fair nor reasonable. Plaintiffs have thus failed to carry their burden to show the Court may
exercise personal jurisdiction over Governor Richardson. Accordingly, Plaintiffs’ “failure to train”
§ 1983 claims against Governor Richardson should be dismissed without prejudice.11
11

Although the New Mexico Defendants state they move to dismiss with prejudice, they move
to dismiss claims against Governor Richardson on the basis of personal jurisdiction, which cannot
result in dismissal with prejudice. See Guidry, 188 F.3d at 623 n. 2 (dismissal for lack of personal
17

3.

Venue

The New Mexico Defendants argue that, even if the State of New Mexico had waived its
Eleventh Amendment immunity and the Court had personal jurisdiction over Governor Richardson,
Plaintiffs’ “failure to train” § 1983 claims against the New Mexico Defendants should still be
dismissed because the District of New Mexico is the only proper venue for such claims. Under the
pertinent statute:
[a] civil action wherein jurisdiction is not founded solely on diversity of citizenship
may . . . be brought only in (1) a judicial district where any defendant resides, if all
defendants reside in the same State, (2) a judicial district in which a substantial part
of the events or omissions giving rise to the claim occurred . . . or (3) a judicial
district in which any defendant may be found, if there is no district in which the
action may otherwise be brought.
28 U.S.C. §1391(b). The New Mexico Defendants argue that, since the named defendants do not
all reside in the same State and since the traffic stop alleged by Plaintiffs occurred in the State of
New Mexico, the proper venue for this suit is in the District of New Mexico. Plaintiffs respond that
venue is suitable everywhere the United States of America may be found. (Clerk’s Dkt. #33 at 9).
Plaintiffs cite no legal basis for this claim, and the undersigned is unable to find any such law. While
the Western District of Texas would be a suitable venue under §1391(b)(3) if there were “no district
in which the action may otherwise be brought. ” 28 U.S.C. §1391(b)(3). However, since venue is
proper in the District of New Mexico under §1391(b)(3)(2) , the terms of §1391(b)(3) do not apply.
Accordingly, as an alternative to the dismissal recommended above, Plaintiffs’ “failure to train”
claims against the New Mexico Defendants under § 1983 should be dismissed without prejudice on
the basis of improper venue.
jurisdiction is not judgment on merits and can only result in dismissal without prejudice).
18

4.

Governor Richardson’s Qualified Immunity

Regarding Plaintiffs’ “failure to train” § 1983 claims against Governor Richardson in his
individual capacity, Governor Richardson asserts that, even if the Court had personal jurisdiction
over him and even if the venue were appropriate, Plaintiffs’ claims against him should be dismissed
because qualified immunity protects him from liability. (Clerk’s Dkt. #14 at 5). The doctrine of
qualified immunity protects government officials “from liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional rights of which a reasonable
person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982).
The “driving force” behind creation of the qualified immunity doctrine was a desire to ensure that
“‘insubstantial claims' against government officials [will] be resolved prior to discovery.” Anderson
v. Creighton, 483 U.S. 635, 640, n.2 (1987). Once raised, a plaintiff has the burden to rebut the
qualified immunity defense “by establishing that the official's allegedly wrongful conduct violated
clearly established law.” Salas v. Carpenter, 980 F.2d 299, 306 (5th Cir. 1992).
As to whether Governor Richardson’s allegedly wrongful conduct violated clearly established
law, Governor Richardson contends no reasonable person would think that a state governor has a
duty to train federal officers the state does not hire or employ, and over whom he has no authority
or control. (Clerk’s Dkt. #14 at 6). He further argues that, even if the officers in question were state
employees, a § 1983 “failure to train” case involves claims against the offending officer’s supervisor
in the department—not a superior far removed from the chain of supervision like the state governor.
(Id.). Plaintiffs respond that Governor Richardson was the chief law enforcement officer at the time
of the alleged traffic stop and the “buck stops there when it comes to seeing to it that federal law
enforcement officers operating in the STATE are trained on state law.” (Clerk’s Dkt. #33 at 4).
19

Plaintiffs further argue that while the “feds have the duty to train due to the employment angle,” the
“STATE (via RICHARDSON) has the duty to train given the laws being enforced.” (Clerk’s Dkt.
#33 at 4, n.3).
The undersigned notes that the Fifth Circuit places the burden on Plaintiffs to demonstrate
that Governor Richardson violated clearly established federal rights. Salas, 980 F.2d at 306. As
such, Plaintiffs must provide more than a mere conclusory statement that Richardson as a state
governor had a duty to train federal law enforcement officers—particularly since the undersigned
is unable to find any case law in which a state governor was found responsible for the training of
federal law enforcement officers. Given the purpose of qualified immunity is to ensure that
“‘insubstantial claims' against government officials [will] be resolved prior to discovery,” Governor
Richardson is entitled to qualified immunity regarding Plaintiffs’ claims against him in his individual
capacity. Anderson, 483 U.S. at 640. Accordingly, Plaintiffs’ “failure to train” § 1983 claim against
Governor Richardson should be dismissed without prejudice.
5.

Failure to State a Claim

If immunity, personal jurisdiction, and venue were not enough to dispose of these claims, the
New Mexico Defendants also argue that Plaintiffs’ “failure to train” § 1983 claims against them
should be dismissed because that cause of action fails to state a claim on which relief may be
granted. Specifically, the New Mexico Defendants state that Plaintiffs’ claims relate to an alleged
unlawful search and seizure by federal agents and not by any employee of the State of New Mexico.
(Clerk’s Dkt. #14 at 8). The New Mexico Defendants further point out that the only claim against
them is that they had a duty to train, but they do not train individuals that they do not employ. Thus,
they argue Plaintiffs fail to state a claim against the New Mexico Defendants. Plaintiffs respond that
20

“deliberate indifference” is a claim, referring to the “failure to train” § 1983 claim. (Clerk’s Dkt. #33
at 9).
To succeed on a “failure to train” claim, the plaintiff must show that: (1) the supervisor failed
to train the subordinate official; (2) a causal link exists between the failure to train and the violation
of the plaintiff's rights; and (3) the failure to train amounts to deliberate indifference. Estate of Davis
ex rel. McCully v. City of North Richland Hills, 406 F.3d 375, 381 (5th Cir. 2005). “‘[D]eliberate
indifference’ is a stringent standard of fault, requiring proof that a municipal actor disregarded a
known or obvious consequence of his action.” Bd. of Cnty. Comm'rs of Bryan Cnty. v. Brown, 520
U.S. 397, 410, 117 S.Ct. 1382, 1391 (1997). “For an official to act with deliberate indifference, the
official must both be aware of facts from which the inference could be drawn that a substantial risk
of serious harm exists, and he must also draw the inference.” Smith v. Brenoettsy, 158 F.3d 908, 912
(5th Cir. 1998).
Regarding the first element of the claim, Plaintiffs fail to adequately demonstrate how the
USFS Agents were subordinate officials of the New Mexico Defendants, since, by definition, federal
officials are not employees of the State of New Mexico. Plaintiffs merely make the conclusory
allegation that because the USFS Agents allegedly stopped them for violations of state traffic laws,
the New Mexico Defendants have some duty to train the agents. This is not a well-pled factual
allegation. The Fifth Circuit has held that “conclusory allegations or legal conclusions masquerading
as factual conclusions will not suffice to prevent a motion to dismiss.” Beavers v. Metropolitan Life
Ins. Co., 566 F.3d 436, 439 (5th Cir. 2009) (quoting Fernandez-Montes v. Allied Pilots Ass'n, 987
F.2d 278 (5th Cir. 1993)). Plaintiffs fail to satisfy the first element of the claim because they have
not set forth any facts establishing that the New Mexico Defendants had any responsibility for the
21

USFS Agents’ training. For this reason, Plaintiffs’ “failure to train” § 1983 claims against the New
Mexico Defendants should be dismissed for failure to state a claim on which relief may be granted.
C.

Bivens Claims Against the Federal Agencies and Officials
Plaintiffs bring “failure to train” Bivens claims against President Obama, Secretary Vilsack,

Chief Tidwell, Chief Kimbell, Smith, Morales, Hayes, (“Federal Officials”), as well as the USFS
and USDA (“Federal Agencies”). (Clerk’s Dkt. #5 at 99-101). The Federal Defendants move for
the dismissal of all of Plaintiffs’ claims against them. because (1) sovereign immunity precludes suit
against the Federal Agencies; (2) the Federal Defendants received insufficient service of process;
(3) President Obama enjoys absolute immunity; and (4) Plaintiffs’ fail to state a claim against the
Federal Officials, other than Morales and Hayes.
1.

Lack of Subject-Matter Jurisdiction Over Federal Agencies

Plaintiffs bring “failure to train” Bivens claims against the USFS and USDA. (Clerk’s Dkt.
#5 at 100). The USFS and USDA contend that the “United States maintains sovereign immunity
from suits asserting a constitutional violation and a violation of the civil rights statutes.” (Clerk’s
Dkt. #37 at 4). A Bivens claim against a federal agency is barred by sovereign immunity. See
F.D.I.C., 510 U.S. at 484 (holding that a Bivens action cannot be brought against a federal agency);
Garcia v. United States, 666 F.2d 960, 966 (5th Cir. 1982) (“suit for damages against the United
States based on the Constitution is not contemplated by Bivens and its progeny”); Armstead v.
Napolitano, 2012 WL 686286 at *3 (E.D.La. March 02, 2012) (“if plaintiff intends to state a claim
against a federal agency ... under Bivens, that claim is barred by sovereign immunity”). Accordingly,
Plaintiffs Bivens claims against the USDA and USFS should be dismissed without prejudice.

22

2.

Insufficient Service of Process

The Federal Defendants also move to dismiss for insufficient service on the same basis raised
by the United States—namely because Deborah Stevens attempted to personally effect service by
mail. As discussed previously, Plaintiffs failed to comply with the rules concerning service of
process, and the Court may dismiss the case without prejudice since Plaintiffs have failed to show
good cause for their failure. Accordingly, Plaintiffs’ Bivens claim against the Federal Defendants
could also be dismissed without prejudice for insufficient service.
3.

The President’s Absolute Immunity

President Obama argues that, even if Plaintiffs had sufficiently served him with process, the
Court should still dismiss Plaintiffs’ claims against him because his absolute immunity bars
Plaintiffs’ claims. The Fifth Circuit has held that absolute immunity bars suit when the allegations
regarding a President’s conduct are “within the perimeter of his responsibilities as chief of the
executive branch.” Saunders v. Bush, 15 F.3d 64, 67 (5th Cir. 1994). In this case, Plaintiffs seek
damages caused by the President’s alleged failure ot train USFS Agents. These allegations relate
to his responsibilities as chief executive. Plaintiffs fail to respond to this argument concerning the
President’s absolute immunity. Plaintiffs have thus failed to show their claims are not barred by the
President’s absolute immunity. As such, Plaintiffs’ Bivens claim against President Obama should
be dismissed with prejudice on these grounds. See Hunter v. Rodriguez, 73 Fed.Appx. 768, 770 (5th
Cir. 2003) (“a dismissal based on absolute immunity should generally be with prejudice”).
4.

Failure to State a Claim Against Federal Officials

Regarding the claims against the Federal Officials in their individual capacities, the Federal
Officials argue, except for the claims against Morales and Hayes, the claims should be dismissed for
23

failure to state a claim. (Clerk’s Dkt. #45 at 3). Bivens cases require specific pleading and may not
consist of mere conclusory allegations unsupported by facts. See, e.g., Lineberry v. United States,
436 Fed.Appx. 293, 296 (5th Cir. 2010) (conclusory allegations without specific facts insufficient
to maintain Bivens claim). A Bivens plaintiff “must identify defendants who were either personally
involved in the constitutional violation or whose acts are causally connected to the constitutional
violation alleged.” Anderson v. Pasadena Indep. Sch. Dist., 184 F.3d 439, 443 (5th Cir. 1999); see
also Iqbal, 556 U.S. at 663 (“[b]ecause vicarious liability is inapplicable to Bivens and § 1983 suits,
a plaintiff must plead that each Government-official defendant, through the official’s own individual
actions, has violated the Constitution”).
The Federal Defendants state that Plaintiffs only refer to the conduct of Joseph Hayes and
perhaps Victor Morales for the traffic stop. (Clerk’s Dkt. #37 at 5). Defendants argue Plaintiffs fail
to allege any personal actions taken by President Obama, Secretary Vilsack, Chief Tidwell, Chief
Kimbell, and Smith. (Id.). Plaintiffs respond that “[e]ach defendant is identified as a responsible
party within the relevant chain of command, and, as a consequence, each is responsible for seeing
to it that the proper training is provided.” (Clerk’s Dkt. #42 at 5). Stating that a chain of command
exists is insufficient to satisfy the specific pleading requirement under Bivens. Plaintiffs are required
to demonstrate that the defendants’ “acts are causally connected to the constitutional violation
alleged.” Anderson, 184 F.3d at 443. Here, Plaintiffs provide no facts concerning what the
defendants’ actions or lack of actions even were. Instead, they allege that constitutional violations
took place and summarily conclude that various officials failed to train the alleged violators.
Plaintiffs’ allegations are thus too vague and conclusory to give rise to liability under Bivens for
“failure to train.” See Yates v. Unidentified Parties, 73 Fed.Appx. 19, 20 (5th Cir. 2003) (mere
24

assertion that sheriff's failure to train deputies resulted in assault on plaintiff too vague and
conclusory to give rise to liability in § 1983 action alleging assault by sheriff's deputies); Gros v. City
Grand Prairie, Tex., 2002 WL 494002 at *9 (5th Cir. March 12, 2002) (mere assertion that police
department never taught “civil rights” to its officers conclusory and insufficient to permit reasonable
trier of fact to find police chief liable for failure to train). Accordingly, any Bivens claims against
the Federal Officials, other than Hayes and Morales, in their individual capacities should be
dismissed without prejudice.
In summary, Plaintiffs’ Bivens claims against the Federal Defendants should be dismissed
for failure to state a claim, and Plaintiffs’ Bivens claims against President Obama which should be
dismissed with prejudice based on his absolute immunity.
E.

Bivens Claims Against Hayes and Morales in their Individual Capacities
Plaintiffs bring a “failure to train” Bivens claim against Hayes and Morales. (Clerk’s Dkt.

#5 at 23). Hayes and Morales argue that, even if Plaintiffs had sufficiently served them with process,
the Court should still dismiss Plaintiffs’ action against them in their individual capacities because
(1) the Court lacks personal jurisdiction over them and (2) Plaintiffs have filed their action against
them in an improper venue. (Clerk’s Dkt. #40 at 2 and #44 at 1-2).12
1.

Lack of Personal Jurisdiction

Even if Plaintiffs had effectively served Hayes and Morales, Plaintiffs’ action should still be
dismissed because this Court lacks personal jurisdiction over Hayes and Morales. Hayes and
Morales move for dismissal for lack of personal jurisdiction pursuant to Rule 12(b)(2), claiming they
12

Hayes and Morales each argue insufficient service of process; however, this has already
been discussed above in relation to the Federal Defendants, including Hayes and Morales. As such,
the undersigned need not address insufficient service in this section.
25

have insufficient contacts with the State of Texas to subject them to suit here. (Clerk’s Dkt. #40 at
4). The same personal jurisdiction analysis conducted above for Governor Richardson applies here
as well. Plaintiffs state that “‘[g]eneral’ jurisdiction is not relevant, here,’” indicating they do not
assert the Court has general jurisdiction over the USFS Agents. (Clerk’s Dkt. #48 at 21). As such,
the Court will only address specific jurisdiction.
To establish specific jurisdiction over Hayes and Morales, Plaintiffs must make prima facie
showings that (1) Hayes and Morales have minimum contacts with Texas and (2) Plaintiffs’ causes
of action arise out of or result from Hayes and Morales’ respective contacts. Seiferth, 472 F.3d at
271. Hayes and Morales contend that they did not purposefully direct activities to Texas and
Plaintiffs’ claims do not arise from or relate to Hayes and Morales’ contacts with Texas. Plaintiffs
respond that Hayes and Morales purposefully directed their activities toward Texas because they
were part of a “National Incident Management Team” operating at an international event. (Clerk’s
Dkt. #48 at 10-11). Under Plaintiffs reasoning, Hayes and Morales have sufficient minimum
contacts with every forum in the country because they were tasked to enforce traffic laws near the
National Forest where the Rainbow Gathering was held.
The specific jurisdiction analysis here is most similar to cases where plaintiffs bring suit in
their home states against traffic law enforcement officers of other states. See, e.g. Alforque v. Martin
Cnty., TX, 2008 WL 4748127 at *3-4 (S.D.Cal. October 23, 2008) (stop, search, and arrest of
Plaintiff within Texas where officer knew Plaintiff was a resident of California does not give rise
to personal jurisdiction over Texas officer as Plaintiff failed to assert officer’s actions were intended
to have effect anywhere other than Texas); Castapheny v. W. Va. State Police, 2010 WL 1901817
at *5 (W.D.Pa. April 15, 2010) (alleged illegal traffic stops, illegal searches and seizures, and
26

warrantless arrest in West Virginia of Pennsylvania resident by West Virginia State Police
insufficient to establish personal jurisdiction over West Virginia officers in Pennsylvania); Aronhalt
v. Jones, 1989 WL 87970 at *4 (D.Or. July 21, 1989) (claims against State of Washington officials
regarding traffic stop and arrest of Oregon resident insufficient to establish personal jurisdiction over
Washington officials in Oregon). The fact that the alleged traffic incident occurred on a National
Forest Service roadway or that the traffic officers were employed by the USFS does not alter the fact
that neither Hayes nor Morales purposely directed their activities toward Texas or purposely availed
themselves of the privilege of conducting activities in Texas. Even presuming that Plaintiffs are
correct that the Rainbow Gathering attracts participants from throughout the country, this does not
imply that Hayes and Morales, simply by being employed by the USFS at a National Forest, sought
out some interaction with the state of Texas. Indeed, if anything, it was the Plaintiffs who, by
traveling to New Mexico to attend the gathering, purposefully directed their activities toward the
State of New Mexico. If they wish to pursue a claim against someone they encountered there, the
proper place for that suit is in New Mexico. Because Plaintiffs fail to establish specific jurisdiction
over Hayes and Morales, the Court lacks personal jurisdiction over Hayes and Morales. Accordingly,
Plaintiffs’ Bivens claims against Hayes and Morales should be dismissed for lack of personal
jurisdiction.
2.

Improper Venue

Even if Plaintiffs had effectively served Hayes and Morales with notice and even if the Court
had personal jurisdiction over Hayes and Morales, dismissal would still be appropriate because the
Western District of Texas is an inappropriate venue for the claims against Hayes and Morales.
Plaintiffs make the same meritless argument for venue here that they raised with regard to venue of
27

the claims against the New Mexico Defendants. For the reasons stated in that discussion, venue for
a suit against Morales and Hayes in this Court is lacking.
Plaintiffs also rely on 28 U.S.C. § 1402(b) (governing claims against the United States)
stating they may choose whether to bring their FTCA claim in Texas or New Mexico. (Clerk’s Dkt.
#48 at 21 and #49 at 7). Section 1402 governs venue for claims brought against the United States.
Plaintiffs bring FTCA claims against the United States of America. (Clerk’s Dkt. #5 at 27). At no
point in the FTCA section of the Amended Complaint do Plaintiffs state Hayes and Morales are
liable under the FTCA. Indeed, this is not even possible because, as Hayes points out, FTCA claims
are only properly brought against the United States. (Clerk’s Dkt. #44 at 7 n. 4) (citing 28 U.S.C.
§ 2679). This argument also fails. Accordingly, Plaintiffs’ Bivens claims against Hayes and Morales
should be dismissed without prejudice for improper venue.
IV. RECOMMENDATION
The undersigned RECOMMENDS that the District Court GRANT the Motion to Dismiss
by State of New Mexico and William Richardson (Clerk’s Dkt. #14); GRANT the Corrected Motion
to Dismiss Plaintiff Geoffrion’s Action Against the United States by the United States of America,
filed December 19, 2011 (Clerk’s Dkt. #36); GRANT Federal Defendants’ Motion to Dismiss
Actions Against USDA, USFS, and Federal Officials in their Official Capacity, filed December 19,
2011 (Clerk’s Dkt. #37); GRANT the Motion to Dismiss Plaintiffs Jerry and Deborah Stevens’
Action Against the United States of America, filed December 19, 2011 (Clerk’s Dkt. #38); GRANT
Defendant Morales’ Motion to Dismiss, filed January 3, 2012 (Clerk’s Dkt. #40); and GRANT
Defendant Hayes’ Motion to Dismiss, filed January 6, 2012 (Clerk’s Dkt. #44), all as set forth in
more detail above.
28

V. OBJECTIONS
The parties may file objections to this Report and Recommendation. A party filing objections
must specifically identify those findings or recommendations to which objections are being made.
The District Court need not consider frivolous, conclusive, or general objections. See Battle v.
United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the Report
shall bar that party from de novo review by the District Court of the proposed findings and
recommendations in the Report and, except upon grounds of plain error, shall bar the party from
appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53, 106 S. Ct. 466,
472-74 (1985); Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en
banc).
To the extent that a party has not been served by the Clerk with this Report &
Recommendation electronically, pursuant to the CM/ECF procedures of this District, the Clerk is
ORDERED to mail such party a copy of this Report and Recommendation by certified mail, return
receipt requested.
SIGNED this 2nd day of July, 2012.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

29