Flores v. Doe Agent 1

Opinion

1 2 3 4 5 6 7 10 11 ANTHONY FLORES, Case No.: 3:24-cv-01189-JES-MSB

12 Plaintiff, ORDER: 13 v. (1) GRANTING DEFENDANT’S 14 MARCOS ANDRADE, individually MOTION TO DISMISS; and and in his official capacity; and the 15 UNITED STATES OF AMERICA, (2) GRANTING PLAINTIFF’S 16 Defendant. MOTION FOR LEAVE TO AMEND COMPLAINT 18

19 [ECF No. 30] 20 Pending before the Court is the Defendant Border Patrol Agent Marcos Andrade’s 21 (“Agent Andrade” or “Andrade”) Motion to Dismiss. ECF No. 30. Plaintiff Anthony Flores 22 (“Plaintiff” or “Flores”) filed an Opposition, and Defendant filed a Reply. ECF No. 31, 23 (“Opp’n”); ECF No. 34. On September 24, 2025, the Court held a hearing on the Motion 24 and took the matter under submission. ECF No. 35. After due consideration and for the 25 reasons discussed below, the Court GRANTS Defendant’s Motion without prejudice and 26 GRANTS Plaintiff’s Motion for Leave to Amend. 27 // 28 // 2 A. Factual Background 3 In his Second Amended Complaint (“SAC”), Flores alleges the following facts. On 4 July 11, 2022, Flores was driving in the Calexico, California when Agent Andrade, a 5 uniformed Customs and Border Protection Agent, abruptly shot him in broad daylight. 6 SAC ¶ 1. Flores posed no danger to Agent Andrade or the public. Id. ¶ 3. Plaintiff was 7 alone in a minivan, unarmed, in bumper-to-bumper traffic, and stopped and/or idling in the 8 stopping traffic. Id. ¶¶ 19, 29, 20, 24. At the time giving rise to this claim, Flores was not 9 committing any crimes or driving dangerously. Id. ¶ 21. Within seconds of Agent Andrade 10 arrival at the scene, he fired his weapon and shot Flores. Id. ¶ 4. These events took place 11 too quickly for Flores to react. Id. 12 During this event, Agent Andrade “was acting in his official capacity and under the 13 color of law.” Id. ¶ 17. Agent Andrade acted in the scope of his employment as a Border 14 Patrol agent of the United States of America. Id. ¶ 69. There was no lawful basis for Agent 15 Andrade to detain Flores or use deadly force. Id. ¶ 25. Agent Andrade lacked any specific, 16 articulable suspicion of Flores, and had no reasonable basis to fear Mr. Flores posed a 17 danger to anyone. Id. ¶¶ 27-28. 18 After exiting his vehicle, Andrade had a clear view of Flores’ behavior. Id. ¶ 31. 19 Andrade yelled “Stop, Stop,” or words to that effect, and “immediately” opened fire upon 20 Flores. Id. ¶ 39. Flores did not hear or process the abrupt commands before he was hit with 21 a barrage of glass and bullets. Id. ¶ 41. Flores sustained injuries to his thumb and eye as 22 well as pain and suffering. Id. ¶¶ 50-54. 23 B. Procedural Background 24 Plaintiff filed the Complaint on July 11, 2024. ECF No. 1. The Court granted 25 Plaintiff’s Motion for Leave to Amend the Complaint, which was filed on November 13, 26 2024. ECF Nos. 5-7. The Court granted Plaintiff’s Motion for Leave to Amend the First 27 Amended Complaint. ECF No. 13-14. The SAC was filed on January 13, 2025. ECF No. 28 15. The Court granted the Parties’ Joint Motion to Continue Deadline for Agent Andrade 1 to respond to the SAC on July 29, 2025. ECF Nos. 23, 29. Agent Andrade filed the instant 2 Motion to Dismiss on August 26, 2025. ECF No. 30. Plaintiff filed his Response on 3 September 10, 2025. ECF No. 31. Agent Andrade filed his Reply on September 16, 2025. 4 ECF No. 34. A hearing took place on September 25, 2025, where the Court heard oral 5 arguments on the motion. ECF No. 35. 7 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to 8 state a claim tests the legal sufficiency of a plaintiff’s claim. Navarro v. Block, 250 F.3d 9 729, 732 (9th Cir. 2001). When considering the motion, the court must accept as true all 10 well-pleaded factual allegations in the complaint. Bell Atlantic Corp. v. Twombly, 550 U.S. 11 544, 555 (2007). The court need not accept as true legal conclusions cast as factual 12 allegations. Id.; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[t]hreadbare recitals of the 13 elements of a cause of action, supported by mere conclusory statements” are insufficient). 14 A complaint must “state a claim for relief that is plausible on its face.” Twombly, 550 15 U.S. at 570. To survive a motion to dismiss, a complaint must include non-conclusory 16 factual content. Id. at 555; Iqbal, 556 U.S. at 679. The facts and the reasonable inferences 17 drawn from those facts must show a plausible—not just a possible—claim for relief. 18 Twombly, 550 U.S. at 556; Iqbal, 556 U.S. at 679; Moss v. U.S. Secret Service, 572 F.3d 19 962, 969 (9th Cir. 2009). The focus is on the complaint, as opposed to any new facts alleged 20 in, for example, the opposition to a defendant’s motion to dismiss. See Schneider v. 21 California Dep’t of Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir. 1998), reversed and 22 remanded on other grounds as stated in 345 F.3d 716 (9th Cir. 2003). “Determining 23 whether a complaint states a plausible claim for relief [is] . . . a context-specific task that 24 requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 25 556 U.S. at 679. The “mere possibility of misconduct” or “unadorned, the defendant- 26 unlawfully-harmed me accusation[s]” fall short of meeting this plausibility standard. Id.; 27 see also Moss, 572 F.3d at 969. 28 /// 2 Agent Andrade argues that Flores’ claim against him should be dismissed because: 3 (1) no Bivens remedy exists for such a claim; and (2) even if a Bivens remedy does exist, 4 he is entitled to qualified immunity. 5 A. Bivens –Fourth Amendment Excessive Force Claim 6 In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, the 7 Supreme Court recognized an implied cause of action for money damages against 8 individual federal officers for violating the Fourth Amendment. 403 U.S. at 389, 397 9 (1971). Over the next decade, Bivens was expanded to permit suits for violations of the 10 Due Process Clause of the Fifth Amendment and the Eight Amendment. See Davis v. 11 Passman, 442 U.S. 228 (1979) (recognizing a congressional staffer’s Fifth Amendment 12 claim for sex discrimination); Carlson v. Green, 446 U.S. 14 (1980) (permitting a federal 13 prisoner’s Eighth Amendment claim of inadequate medical care). In the years since, 14 “expanding the Bivens remedy” has become “a disfavored judicial activity.” Ziglar v. 15 Abbasi, 582 U.S. 120, 135 (2017) (internal quotation marks omitted). However, the 16 Supreme Court has not “dispense[d] with Bivens altogether.” Egbert v. Boule, 596 U.S. 17 482, 491 (2022). 18 When analyzing an alleged Bivens claim, courts engage in a two-step inquiry. Id. at 19 492. First, the court must determine whether the claim “presents a new Bivens context.” Id. 20 at 483. If the claim presents a “new context,” the court must then determine whether “there 21 are special factors indicating that the Judiciary is at least arguably less equipped than 22 Congress to weigh the costs and benefits of allowing a damages action to proceed.” Id. at 23 492 (internal quotation marks omitted). 24 // 25 // 26 // 27 // 28 // 1 1. New Context 2 The Supreme Court has held that a claim presents a new context when it is 3 meaningfully different than previously decided Bivens cases. Ziglar, 582 U.S. at 139. The 4 Court further instructed that: 5 A case might differ in a meaningful way because of the rank of the officers involved; the constitutional right at issue; the generality or specificity of the 6 official action; the extent of judicial guidance as to how an officer should 7 respond to the problem or emergency to be confronted; [or] the statutory or other legal mandate under which the officer was operating. 8 9 Id. at 139-40. 10 On two occasions, the Supreme Court has declined to extend Bivens where plaintiffs 11 alleged excessive force claims against Border Patrol agents. See Hernandez v. Mesa, 589 12 U.S. 93 (2020); Egbert, 596 U.S. 482. In both cases, the Court found that defendants were 13 “carrying out Border Patrol’s mandate to interdict persons attempting to illegally enter or 14 exit the United States or goods being illegally imported into or exported from the United 15 States.” Egbert, 596 U.S. at 494 (internal quotation and alteration marks omitted). 16 Accordingly, it concluded that “regulating the conduct of agents at the border 17 unquestionably has national security implications,” and the “risk of undermining border 18 security provides reason to hesitate before extending Bivens into this field.” Hernandez, 19 589 U.S. at 108. The Court, therefore, held that “in all but the most unusual circumstances, 20 prescribing a cause of action is a job for Congress, not the courts.” Egbert, 596 U.S. at 486. 21 Thus, excessive force claims based on the conduct of CPB agents, with a nexus to the 22 agency’s mission, are foreclosed by Egbert. Id. 23 Agent Andrade directs the Court to Flores’ SAC, which alleges that during the events 24 that give rise to Flores’ claim, Andrade was a uniformed Customs and Border Protection 25 agent acting within his official capacity and under the color of law. Mot. at 10; SAC ¶¶ 1, 26 17, 69. He argues that under these facts, and Hernandez and Egbert, the Court must find 27 that this claim presents a “new context” under Bivens. ECF No. 30-1 (“Mot.”) at 9-10. 28 // 1 Flores contends that his claim is not an extension of Bivens. He acknowledges that 2 Agent Andrade was acting under color of law but argues that Andrade did not act in good 3 faith and violated the Fourth Amendment by using unreasonable force against him, without 4 probable cause to believe that he had committed a crime. SAC ¶¶ 59-60. In Flores’ 5 opposition brief, he argues that his claim is distinguishable from Hernandez and Egbert 6 because “the defendant in this case was not enforcing immigration laws or border-related 7 laws” when the encounter at issue occurred. Opp’n at 8:11-12. Flores further urges the 8 Court to adopt the rationale of a District Court of Arizona decision, Mattia v. U.S.A., Case 9 No. CV-24-00252-TUC-RM, 2024 WL 4858427 (D. Ariz. Aug. 7, 2025); ECF No. 31-1. 10 In Mattia, the court held that under Bivens, an excessive force claim against Border Patrol 11 agents did not present a new context. Opp’n Ex. A at 13. 12 Flores’ arguments fail for two reasons. First, Flores asks the Court to consider factual 13 allegations which are not contained within the SAC. This request is improper. Schneider, 14 151 F3d at 1197 n. 1 (“In determining the propriety of a Rule 12(b)(6) dismissal, a court 15 may not look beyond the complaint to a plaintiff's moving papers, such as a memorandum 16 in opposition to a defendant's motion to dismiss.”) (emphasis in original); compare Opp’n 17 at 8:11-12 with SAC ¶¶ 1,17, 69. 18 Second, when analyzing solely the factual allegations contained within the SAC, 19 Flores’ claim is distinguishable from Mattia. This is because, there, “the Border Patrol 20 agents at issue in this case were assisting local law enforcement on a general criminal 21 matter rather than engaging in work with a nexus to immigration enforcement.” Opp’n Ex. 22 A at 13 (emphasis added). Here, any allegations that Agent Andrade’s conduct lacked a 23 nexus with the Border Patrol’s mandate is conspicuously absent from the SAC. 24 Consequently, Hernandez and Egbert controls Flores’ claim. Thus, the Court finds that 25 Flores’ excessive force claim against Border Patrol agent Andrade does present a new 26 context under Bivens. 27 // 28 // 1 2. Special Factors 2 The court now turns to whether this case involves any “special factors” that would 3 preclude a Bivens remedy. 4 The Supreme Court has held that a special factor exists if “there is any rational reason 5 (even one) to think that Congress is better suited to weigh the costs and benefits of allowing 6 a damages action to proceed.” Egbert, 596 U.S. at 496 (internal quotation marks and 7 emphasis omitted). When a court finds that a special factor exists, then it must dismiss the 8 claim. Id. 9 Under Ninth Circuit law, this inquiry requires a court to ask “whether there is ‘any 10 alternative, existing process for protecting’ the plaintiff[’s] interests.” Mirmehdi v. United 11 States, 689 F.3d 975, 982 (9th Cir. 2012) (quoting W. Radio Servs. Co. v. U.S. Forest Serv., 12 578 F.3d 1116, 1120 (9th Cir. 2009)). “If there is such an alternative remedy, [then the] 13 inquiry stops.” Id.; see Egbert, 596 U.S. at 493 (“[O]ur cases hold that a court may not 14 fashion a Bivens remedy if Congress already has provided, or has authorized the executive 15 to provide, ‘an alternative remedial structure.’”) (citations omitted). 16 The Supreme Court has made clear that an analysis of whether the existing remedies 17 provide plaintiff with complete relief is not necessary. Id. (“So long as Congress or the 18 Executive has created a remedial process that it finds sufficient to secure an adequate level 19 of deterrence, the courts cannot second-guess that calibration by superimposing 20 a Bivens remedy even if a court independently concludes that the Government's procedures 21 are not as effective as an individual damages remedy.”). 22 Agent Andrade argues that alternative remedies exist that preclude a Bivens remedy. 23 Mot. at 12. For example, aggrieved parties can report any alleged misconduct to the 24 Inspector General of the Department of Homeland Security, who must either investigate or 25 refer the matter to the Officer for Civil Rights and Civil Liberties. 8 C.F.R. §§ 287.10(a)- 26 (b)); 6 U.S.C. § 345(a)(1), (4), (6) (requiring Officer for Civil Rights and Civil Liberties to 27 investigate alleged misconduct); Mot. at 13. Also, under 18 U.S.C. § 242, the Department 28 of Justice may prosecute federal agents who willfully deprive any person of a 1 Constitutional right while acting under color of law. Hernandez v. Mesa, 885 F.3d 811, 2 821 (5th Cir. 2018) (explaining threat of criminal prosecution is not hollow). 3 Plaintiff points to Hernandez and urges to the Court to look to analogous statutes for 4 guidance on the appropriate boundaries of judge-made causes of action, such as 42 U.S.C. 5 § 1983. Hernandez, 589 U.S. at 109; Opp’n at 10. Flores also relies on an overturned Fourth 6 Circuit decision where that court reasoned that “[t]he officers’ alleged conduct amounts to 7 a clear-cut constitutional violation that would easily withstand a motion to dismiss in a § 8 1983 case” to extended Bivens. Fields v. Fed. Bureau of Prisons, 109 F.4th 264, 272-73 9 (4th Cir. 2024). 10 The Court finds that both contentions are unpersuasive. That is because when the 11 Supreme Court reviewed Fields, it found that “[t]his case arises in a new context, and 12 special factors counsel against recognizing an implied Bivens cause of action” because “an 13 alternative remedial structure already exists for aggrieved federal prisoners.” Goldey v. 14 Fields, 606 U.S. 942, 944-45 (2025) (internal quotations omitted). 15 Accordingly, the Court finds that Congress has afforded plaintiffs, such as Flores, 16 with alternative remedies for the claim he asserts against Andrade. Such remedies 17 independently foreclose a plaintiff’s Bivens action. Egbert, 596 U.S. at 484. Therefore, the 18 Court must conclude that Flores has failed to allege sufficient factual allegations to state 19 a Bivens claim upon which relief can be granted. Id. 20 B. Qualified Immunity 21 Due to the Court finding that Flores has failed to state a claim for relief against 22 Andrade under Bivens, it need not consider whether Agent Andrade is entitled to qualified 23 immunity. 24 C. Leave to Amend 25 During the hearing on the Motion, Plaintiff requested that in the event the Court 26 grants Andrade’s Motion, that it also grants him leave to amend to file a third amended 27 complaint. 28 // 1 When a court dismisses a complaint under Federal Rule of Civil Procedure 12(b)(6), 2 ||it must then decide whether to grant the plaintiff leave to amend. A district court should 3 || “freely give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a). However, a 4 || district court has discretion to deny leave to amend when a proposed amendment would be 5 || futile. Chappel v. Lab. Corp. of America, 232 F.3d 719, 725-26 (9th Cir. 2000). Dismissal 6 || without leave to amend is only appropriate when the court is satisfied that the deficiencies 7 || of the complaint could not possibly be cured by an amendment. Jackson v. Carey, 353 F.3d 8 758 (9th Cir. 2003). In other words, if allowing a party to amend its pleading would 9 ||be futile, district courts properly decline to grant leave to amend. Thinket Ink Info. Res., 10 v. Sun Microsys., Inc., 368 F.3d 1053, 1061 (9th Cir. 2004) (citing Saul v. United 11 || States, 928 F.2d 829, 843 (9th Cir. 1991)). 12 The Court finds that it is possible to cure the defects in Flores’ SAC. Thus, permitting 13 || him leave to amend would not be futile. Foman v. Davis, 371 U.S. 178, 182, (1962). 15 For the reasons set forth above, the Court GRANTS Defendant’s Motion to Dismiss 16 || without prejudice and GRANTS Plaintiff's Motion for Leave to Amend. Plaintiff has 21 17 ||days from the date of this Order to file a Third Amended Complaint to address the 18 || deficiencies noted above. 20 || Dated: October 6, 2025 . 21 IO Sin, 22 Honorable James E. Simmons Jr 3 United States District Judge 24 25 26 27 28