UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
JOHN DAR KING,
Plaintiff,
MEMORANDUM AND ORDER -against- Case No. 1:23-CV-9609
U.S. CUSTOMS AND BORDER PROTECTION OFFICER AARON THOMAS, and OFFICERS JOHN AND JANE DOE,
Defendants.1 Appearances: For the Defendant U.S. Customs and For the Plaintiff: Border Protection Officer Aaron TAMARA M. HARRIS Thomas: Law Office of Tamara M. Harris GEOFFREY M. STANNARD 111 Broadway, Suite 706 DOJ-USAO New York, NY 10006 271A Cadman Plaza East Brooklyn, NY 11201
BLOCK, Senior District Judge: Plaintiff John Dar King (“Plaintiff” or “King”) brings this civil rights action against Defendants U.S. Customs and Border Protection Officer (“CBPO”) Aaron Thomas (“Thomas”) and CBPOs John and Jane Doe (collectively “Defendants”), asserting violations of his rights under the Fourth and Fourteenth Amendments pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403
1 The clerk is respectfully directed to amend the caption to reflect the correct name of the agency as stated above. U.S. 388 (1971). Defendant Thomas moves to dismiss Plaintiff’s complaint under Federal Rule of Civil Procedure 12(b)(6). For the following reasons, his motion is
GRANTED, and the complaint is dismissed in its entirety. I. Background On a Rule 12(b)(6) motion, the Court assumes the complaint’s factual
allegations, but not legal conclusions, to be true. See Pension Ben. Guar. Corp. ex rel. St. Vincent Cath. Med. Centers Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 717 (2d Cir. 2013). In July 2023, Plaintiff King arrived at John F. Kennedy Airport (“JFK”) on
an international flight from the Dominican Republic with six boxes of lotion that he obtained permission to take onboard. King, a Haitian-born U.S. citizen, wore Jewish religious garb. Upon arrival, CBPO Thomas confronted King and asserted
that he had stolen luggage off the plane. Thomas and two unnamed CBPOs then detained King for four hours and confiscated his luggage, which was returned to him nine days later. King alleges that the CBPOs targeted him because of racial, ethnic, and religious animus.
II. Standard of review To survive a motion to dismiss under Rule 12(b)(6), “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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when “the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). The pleading must offer more than “bare assertions,” “conclusory” allegations, or a “formulaic recitation of the elements of
a cause of action.” Id. III. Discussion Plaintiff’s proposed Bivens claims invoke rights under the Fourth and Fourteenth Amendments to the U.S. Constitution. At the threshold, claims
asserting rights under the Fourteenth Amendment “cannot be brought against federal officials not acting under state law.” Marshall-Screen v. I.R.S., No. 01-CV- 0811, 2002 WL 264999, at *3 (E.D.N.Y. Feb. 26, 2002) (citing District of
Columbia v. Carter, 409 U.S. 418, 424 (1973)). “Because defendants are all federal officials, and the plaintiff does not allege that the alleged deprivations were accomplished under color of state law, the Fourteenth Amendment is [] inapplicable.” Id. (quoting Marshall v. Reno, 915 F. Supp. 426, 428 (D.D.C.
1996)). Thus, the Court only discusses Plaintiff’s Fourth Amendment Bivens action. “A Bivens action is a judicially-created remedy designed to provide
individuals with a cause of action against federal officials who have violated their constitutional rights.” 2 Higazy v. Templeton, 505 F.3d 161, 169 (2d Cir. 2007). “The Supreme Court has expressly recognized only three contexts in which a
Bivens remedy is available: unreasonable search and seizure by federal officials in violation of the Fourth Amendment, Bivens, 403 U.S. 388; gender-based employment discrimination by a United States Congressman in violation of the
Fifth Amendment, Davis v. Passman, 442 U.S. 228 (1979); and federal prison officials’ deliberate indifference to an inmate's serious medical needs in violation of the Eighth Amendment, Carlson v. Green, 446 U.S. 14 (1980).” Ballard v. Dutton, No. 23-6416, 2024 WL 4039606, at *1 (2d Cir. Sept. 4, 2024) (summary
order) (citing Ziglar v. Abbasi, 582 U.S. 120, 130–31 (2017)). “Since Carlson, however, the Supreme Court has repeatedly declined to extend Bivens, warning that ‘recognizing a cause of action under Bivens is ‘a disfavored judicial activity.’”
Id. (quoting Egbert v. Boule, 596 U.S. 482, 491 (2022)). The Supreme Court has instructed courts to apply a two-part test in deciding whether a proposed Bivens claim may proceed. The court first decides “whether the case presents a new Bivens context––i.e., is it meaningfully different from the
three cases in which the Court has implied a damages action.”3 Egbert, 596 U.S. at
2 Throughout this opinion, the Court omits all internal quotation marks, footnotes, and citations, and adopts all alterations, unless otherwise indicated. 3 “Without endeavoring to create an exhaustive list of differences that are meaningful enough to make a given context a new one, some examples might prove instructive. A case might differ in a meaningful way because of the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer 492. If the case falls within a recognized context, then it may proceed. See id. at 492–93. But where “a claim arises in a new context, a Bivens remedy is
unavailable if” the court then recognizes “special factors indicating that the Judiciary is at least arguably less equipped than Congress to weigh the costs and benefits of allowing a damages action to proceed.” Id. at 492.
First, this case presents a new distinct Bivens context. It involves CBPOs—a “new category of defendants.” Ziglar, 582 U.S. at 135. The CBPOs operated under a unique “statutory or other legal mandate,” id. at 140, that empowers CBPOs to examine “the baggage of any person arriving in the United States,” 19 U.S.C. §
1496. None of the three recognized Bivens contexts involve CBPOs searching the baggage of a person arriving in the United States on an international flight. Plaintiff argues, however, that all claims of unlawful searches and seizures under
the Fourth Amendment fall within a recognized, actionable Bivens context. But that is incorrect because “a claim may arise in a new context even if it is based on the same constitutional provision as” a Bivens claim in a recognized context. Hernandez v.
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
JOHN DAR KING,
Plaintiff,
MEMORANDUM AND ORDER -against- Case No. 1:23-CV-9609
U.S. CUSTOMS AND BORDER PROTECTION OFFICER AARON THOMAS, and OFFICERS JOHN AND JANE DOE,
Defendants.1 Appearances: For the Defendant U.S. Customs and For the Plaintiff: Border Protection Officer Aaron TAMARA M. HARRIS Thomas: Law Office of Tamara M. Harris GEOFFREY M. STANNARD 111 Broadway, Suite 706 DOJ-USAO New York, NY 10006 271A Cadman Plaza East Brooklyn, NY 11201
BLOCK, Senior District Judge: Plaintiff John Dar King (“Plaintiff” or “King”) brings this civil rights action against Defendants U.S. Customs and Border Protection Officer (“CBPO”) Aaron Thomas (“Thomas”) and CBPOs John and Jane Doe (collectively “Defendants”), asserting violations of his rights under the Fourth and Fourteenth Amendments pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403
1 The clerk is respectfully directed to amend the caption to reflect the correct name of the agency as stated above. U.S. 388 (1971). Defendant Thomas moves to dismiss Plaintiff’s complaint under Federal Rule of Civil Procedure 12(b)(6). For the following reasons, his motion is
GRANTED, and the complaint is dismissed in its entirety. I. Background On a Rule 12(b)(6) motion, the Court assumes the complaint’s factual
allegations, but not legal conclusions, to be true. See Pension Ben. Guar. Corp. ex rel. St. Vincent Cath. Med. Centers Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 717 (2d Cir. 2013). In July 2023, Plaintiff King arrived at John F. Kennedy Airport (“JFK”) on
an international flight from the Dominican Republic with six boxes of lotion that he obtained permission to take onboard. King, a Haitian-born U.S. citizen, wore Jewish religious garb. Upon arrival, CBPO Thomas confronted King and asserted
that he had stolen luggage off the plane. Thomas and two unnamed CBPOs then detained King for four hours and confiscated his luggage, which was returned to him nine days later. King alleges that the CBPOs targeted him because of racial, ethnic, and religious animus.
II. Standard of review To survive a motion to dismiss under Rule 12(b)(6), “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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when “the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). The pleading must offer more than “bare assertions,” “conclusory” allegations, or a “formulaic recitation of the elements of
a cause of action.” Id. III. Discussion Plaintiff’s proposed Bivens claims invoke rights under the Fourth and Fourteenth Amendments to the U.S. Constitution. At the threshold, claims
asserting rights under the Fourteenth Amendment “cannot be brought against federal officials not acting under state law.” Marshall-Screen v. I.R.S., No. 01-CV- 0811, 2002 WL 264999, at *3 (E.D.N.Y. Feb. 26, 2002) (citing District of
Columbia v. Carter, 409 U.S. 418, 424 (1973)). “Because defendants are all federal officials, and the plaintiff does not allege that the alleged deprivations were accomplished under color of state law, the Fourteenth Amendment is [] inapplicable.” Id. (quoting Marshall v. Reno, 915 F. Supp. 426, 428 (D.D.C.
1996)). Thus, the Court only discusses Plaintiff’s Fourth Amendment Bivens action. “A Bivens action is a judicially-created remedy designed to provide
individuals with a cause of action against federal officials who have violated their constitutional rights.” 2 Higazy v. Templeton, 505 F.3d 161, 169 (2d Cir. 2007). “The Supreme Court has expressly recognized only three contexts in which a
Bivens remedy is available: unreasonable search and seizure by federal officials in violation of the Fourth Amendment, Bivens, 403 U.S. 388; gender-based employment discrimination by a United States Congressman in violation of the
Fifth Amendment, Davis v. Passman, 442 U.S. 228 (1979); and federal prison officials’ deliberate indifference to an inmate's serious medical needs in violation of the Eighth Amendment, Carlson v. Green, 446 U.S. 14 (1980).” Ballard v. Dutton, No. 23-6416, 2024 WL 4039606, at *1 (2d Cir. Sept. 4, 2024) (summary
order) (citing Ziglar v. Abbasi, 582 U.S. 120, 130–31 (2017)). “Since Carlson, however, the Supreme Court has repeatedly declined to extend Bivens, warning that ‘recognizing a cause of action under Bivens is ‘a disfavored judicial activity.’”
Id. (quoting Egbert v. Boule, 596 U.S. 482, 491 (2022)). The Supreme Court has instructed courts to apply a two-part test in deciding whether a proposed Bivens claim may proceed. The court first decides “whether the case presents a new Bivens context––i.e., is it meaningfully different from the
three cases in which the Court has implied a damages action.”3 Egbert, 596 U.S. at
2 Throughout this opinion, the Court omits all internal quotation marks, footnotes, and citations, and adopts all alterations, unless otherwise indicated. 3 “Without endeavoring to create an exhaustive list of differences that are meaningful enough to make a given context a new one, some examples might prove instructive. A case might differ in a meaningful way because of the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer 492. If the case falls within a recognized context, then it may proceed. See id. at 492–93. But where “a claim arises in a new context, a Bivens remedy is
unavailable if” the court then recognizes “special factors indicating that the Judiciary is at least arguably less equipped than Congress to weigh the costs and benefits of allowing a damages action to proceed.” Id. at 492.
First, this case presents a new distinct Bivens context. It involves CBPOs—a “new category of defendants.” Ziglar, 582 U.S. at 135. The CBPOs operated under a unique “statutory or other legal mandate,” id. at 140, that empowers CBPOs to examine “the baggage of any person arriving in the United States,” 19 U.S.C. §
1496. None of the three recognized Bivens contexts involve CBPOs searching the baggage of a person arriving in the United States on an international flight. Plaintiff argues, however, that all claims of unlawful searches and seizures under
the Fourth Amendment fall within a recognized, actionable Bivens context. But that is incorrect because “a claim may arise in a new context even if it is based on the same constitutional provision as” a Bivens claim in a recognized context. Hernandez v. Mesa, 589 U.S. 93, 103 (2020).
should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider.” Ziglar, 582 U.S. at 139–40. Second, “special factors not present in prior Bivens cases distinguish [Plaintiff’s] claim” and caution against extending Bivens here. See Ballard, 2024
WL 4039606, at *2. “A Bivens cause of action may not lie where, as here, national security is at issue” by virtue of “regulating the conduct of agents at the border,” like at JFK. Egbert, 596 U.S. at 494; see, e.g., Morales v. United States, No. 18-
CV-4247, 2023 WL 2129580, at *9–10 (E.D.N.Y. Feb. 17, 2023) (granting summary judgment to dismiss Fourth Amendment unreasonable search and seizure Bivens claim against CBPOs “arising out of [Plaintiff’s] detention at” JFK). Plainly, courts may not authorize Bivens actions “against Border Patrol agents
generally.” Egbert, 596 U.S. at 496. This case is no different, and the Court cannot authorize Plaintiff’s Bivens action against CBPOs for conduct within the scope of their employment that “occurred at JFK, an international border.” See Morales,
2023 WL 2129580, at *9. IV. Conclusion Accordingly, Defendant Thomas’s motion is GRANTED, and Plaintiff’s
complaint is dismissed in its entirety against all moving and nonmoving defendants.4 SO ORDERED.
_/S/ Frederic Block___________ FREDERIC BLOCK Senior United States District Judge Brooklyn, New York June 10, 2025
4 Plaintiff asserted the same Bivens claims against all Defendants. “Since the rationale for dismissal of” Defendant Thomas “is equally applicable” to the nonmoving unnamed individual defendants, “they are dismissed as well.” Black v. Blackmun, No. 11-CV-2372, 2011 WL 6019394, at *2 n.3 (E.D.N.Y. Dec. 1, 2011).