3 Case No.: 2:26-cv-00005-JAD-DJA Robert Wayne Kerner, 4 Plaintiff Order Granting Motion to Dismiss and 5 v. Closing Case
6 Liam Pisan, [ECF No. 9]
7 Defendant
8 Pro se plaintiff Robert Wayne Kerner sues Liam Pisan, a paralegal at the United States 9 Attorney’s Office for the District of Nevada, for due-process violations presumably related to 10 Kerner’s separate Federal Tort Claims Act action against the Department of Veterans Affairs.1 11 He brings his claims under Bivens v. Six Unknown Named Agents of Federal Bureau of 12 Narcotics,2 a Supreme Court case that allows plaintiffs to sue federal officers for violations of 13 constitutional rights in limited circumstances. Pisan moves to dismiss the case, contending that 14 Bivens has been severely limited by subsequent Supreme Court cases, and Kerner’s claims do 15 not fit into the narrow openings that the High Court has left for lawsuits against federal 16 employees. Because Kerner cannot bring his due-process claims under Bivens and no set of facts 17 would change that conclusion, I grant that motion and close this case. 18 Discussion 19 A. Courts are discouraged from extending Bivens to new contexts. 20 The Bivens doctrine is the federal-official equivalent to suing state officials for monetary 21 damages for constitutional violations under 42 U.S.C. § 1983. In Bivens, the Supreme Court 22
23 1 ECF No. 1-2; see also Kerner v. U.S. Veteran Affairs Med. Ctr., 2:23-cv-01872-JAD-MDC. 2 Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). 1 recognized the right to sue federal officials for violations of Fourth Amendment rights related to 2 unconstitutional searches and seizures.3 In two subsequent cases, the Supreme Court recognized 3 the right to sue federal officers for due-process violations related to workplace discrimination4 4 and for Eighth Amendment violations based on the failure to provide adequate medical care to 5 federal inmates.5 But in recent years, the Supreme Court has severely limited Bivens to the
6 causes of action raised in those three cases. In Ziglar v. Abbasi, the High Court acknowledged 7 that “expanding the Bivens remedy” beyond the circumstances affirmatively recognized by its 8 own previous cases “is now a disfavored judicial activity.”6 9 The Ziglar Court implemented a two-part inquiry to determine whether a case may be 10 brought under Bivens. First, “courts must determine whether the plaintiff is seeking a Bivens 11 remedy in a new context.”7 “If the case is different in a meaningful way from previous Bivens 12 cases decided by [the Supreme] Court, then the context is new.”8 To determine whether a 13 context is new, courts may consider: 14 the rank of the officers involved, the constitutional right at issue, the generality or specificity of the official action, the extent of 15 judicial guidance as to how an officer should respond to the problem or emergency to be confronted, the statutory or other legal 16 mandate under which the officer was operating, the risk of disruptive intrusion by the Judiciary into the functioning of other 17 branches, or the presence of potential special factors that previous Bivens cases did not consider.9 18 19 3 See generally id. 20 4 Davis v. Passman, 442 U.S. 228, 248–49 (1979). 21 5 Carlson v. Green, 446 U.S. 14, 17–19 (1980). 6 Ziglar v. Abbasi, 582 U.S. 120, 135 (2017). 22 7 Lanuza v. Love, 899 F.3d 1019, 1023 (9th Cir. 2018) (citing Ziglar, 582 U.S. at 139). 23 8 Ziglar, 582 U.S. at 139. 9 Id. at 140. 1 If the case falls within a previous Bivens context, then the claim may proceed. But if it doesn’t, 2 the court “must then ask whether there ‘are special factors indicating that the Judiciary is at least 3 arguably less equipped than Congress to weigh the costs and benefits of allowing a damages 4 action to proceed.’”10 “If there are alternative remedial structures” that Congress or the 5 Executive Branch created to provide a remedy, “that alone, like any special factor, is reason
6 enough to limit the power of the Judiciary to infer a new Bivens cause of action.”11 Existing 7 remedies need not “provide complete relief”—the court “must ask only whether it, rather than 8 the political branches, is better equipped to decide whether existing remedies should be 9 augmented by the creation of a new judicial remedy.”12 The court must put a thumb on the scale 10 in favor of leaving the creation of a damages remedy to Congress. “If there is even a single 11 reason to pause before applying Bivens in a new context, a court may not recognize a Bivens 12 remedy.”13 13 B. Kerner’s case presents a new Bivens context that this court cannot recognize. 14 Kerner’s complaint alleges that Pisan, as an employee of the U.S. Attorney’s Office,
15 “engaged in obstruction, fabrication, and refusal to respond to lawful notices” in violation of his 16 due-process rights.14 He also accuses Pisan of “perpetuat[ing] false and medically impossible 17 18 19 20 10 Watanabe v. Derr, 115 F.4th 1034, 1038 (9th Cir. 2024) (quoting Egbert v. Boule, 596 U.S. 21 482, 492 (2022)). 11 Egbert, 596 U.S. at 493. 22 12 Id. (cleaned up). 23 13 Id. at 492 (cleaned up). 14 ECF No. 1-2 at 2. 1 narratives in federal proceedings” and “extend[ing] a pattern of delay and intimidation.”15 He 2 seeks $10,000 in damages and a civil judgment.16 3 Kerner’s claim “bear[s] little resemblance”17 to the three claims that the Supreme Court 4 has recognized under Bivens. In response to Pisan’s dismissal motion, Kerner characterizes his 5 claim as one “involving intentional interference with court access” and contends that the court
6 recognized a Bivens right of action for those types of claims in Christopher v. Harbury.18 But 7 the Christopher Court explicitly noted that “[t]he petitioners did not challenge below the 8 existence of a cause of action under Bivens” and declined to express any opinion on whether 9 such a right existed.19 The Supreme Court has not recognized a Bivens claim against someone in 10 Pisan’s official rank (paralegal) specifically or against employees of the U.S. Attorney’s Office 11 generally. Nor has it explicitly recognized a due-process or First Amendment access-to-courts 12 claim against federal prosecutors or other DOJ employees. So I conclude that this is a new 13 Bivens context. 14 The existence of alternative remedial structures is reason enough not to create a Bivens
15 remedy in this case. “So long as Congress or the Executive has created a remedial process that it 16 finds sufficient to secure an adequate level of deterrence” for employees to avoid misconduct, 17 “the courts cannot second-guess that calibration by superimposing a Bivens remedy.”20 18 19
20 15 Id. 21 16 Id. 17 Ziglar, 582 U.S. at 140. 22 18 Christopher v. Harbury, 536 U.S. 403 (2002). 23 19 Id. at 412 n.6. 20 Egbert, 596 U.S. at 498. 1 Here, the Department of Justice (DOJ) Office of the Inspector General is required by statute to 2 receive and investigate complaints alleging civil-rights and civil-liberties abuses by DOJ 3 employees, including employees of the U.S.
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3 Case No.: 2:26-cv-00005-JAD-DJA Robert Wayne Kerner, 4 Plaintiff Order Granting Motion to Dismiss and 5 v. Closing Case
6 Liam Pisan, [ECF No. 9]
7 Defendant
8 Pro se plaintiff Robert Wayne Kerner sues Liam Pisan, a paralegal at the United States 9 Attorney’s Office for the District of Nevada, for due-process violations presumably related to 10 Kerner’s separate Federal Tort Claims Act action against the Department of Veterans Affairs.1 11 He brings his claims under Bivens v. Six Unknown Named Agents of Federal Bureau of 12 Narcotics,2 a Supreme Court case that allows plaintiffs to sue federal officers for violations of 13 constitutional rights in limited circumstances. Pisan moves to dismiss the case, contending that 14 Bivens has been severely limited by subsequent Supreme Court cases, and Kerner’s claims do 15 not fit into the narrow openings that the High Court has left for lawsuits against federal 16 employees. Because Kerner cannot bring his due-process claims under Bivens and no set of facts 17 would change that conclusion, I grant that motion and close this case. 18 Discussion 19 A. Courts are discouraged from extending Bivens to new contexts. 20 The Bivens doctrine is the federal-official equivalent to suing state officials for monetary 21 damages for constitutional violations under 42 U.S.C. § 1983. In Bivens, the Supreme Court 22
23 1 ECF No. 1-2; see also Kerner v. U.S. Veteran Affairs Med. Ctr., 2:23-cv-01872-JAD-MDC. 2 Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). 1 recognized the right to sue federal officials for violations of Fourth Amendment rights related to 2 unconstitutional searches and seizures.3 In two subsequent cases, the Supreme Court recognized 3 the right to sue federal officers for due-process violations related to workplace discrimination4 4 and for Eighth Amendment violations based on the failure to provide adequate medical care to 5 federal inmates.5 But in recent years, the Supreme Court has severely limited Bivens to the
6 causes of action raised in those three cases. In Ziglar v. Abbasi, the High Court acknowledged 7 that “expanding the Bivens remedy” beyond the circumstances affirmatively recognized by its 8 own previous cases “is now a disfavored judicial activity.”6 9 The Ziglar Court implemented a two-part inquiry to determine whether a case may be 10 brought under Bivens. First, “courts must determine whether the plaintiff is seeking a Bivens 11 remedy in a new context.”7 “If the case is different in a meaningful way from previous Bivens 12 cases decided by [the Supreme] Court, then the context is new.”8 To determine whether a 13 context is new, courts may consider: 14 the rank of the officers involved, the constitutional right at issue, the generality or specificity of the official action, the extent of 15 judicial guidance as to how an officer should respond to the problem or emergency to be confronted, the statutory or other legal 16 mandate under which the officer was operating, the risk of disruptive intrusion by the Judiciary into the functioning of other 17 branches, or the presence of potential special factors that previous Bivens cases did not consider.9 18 19 3 See generally id. 20 4 Davis v. Passman, 442 U.S. 228, 248–49 (1979). 21 5 Carlson v. Green, 446 U.S. 14, 17–19 (1980). 6 Ziglar v. Abbasi, 582 U.S. 120, 135 (2017). 22 7 Lanuza v. Love, 899 F.3d 1019, 1023 (9th Cir. 2018) (citing Ziglar, 582 U.S. at 139). 23 8 Ziglar, 582 U.S. at 139. 9 Id. at 140. 1 If the case falls within a previous Bivens context, then the claim may proceed. But if it doesn’t, 2 the court “must then ask whether there ‘are special factors indicating that the Judiciary is at least 3 arguably less equipped than Congress to weigh the costs and benefits of allowing a damages 4 action to proceed.’”10 “If there are alternative remedial structures” that Congress or the 5 Executive Branch created to provide a remedy, “that alone, like any special factor, is reason
6 enough to limit the power of the Judiciary to infer a new Bivens cause of action.”11 Existing 7 remedies need not “provide complete relief”—the court “must ask only whether it, rather than 8 the political branches, is better equipped to decide whether existing remedies should be 9 augmented by the creation of a new judicial remedy.”12 The court must put a thumb on the scale 10 in favor of leaving the creation of a damages remedy to Congress. “If there is even a single 11 reason to pause before applying Bivens in a new context, a court may not recognize a Bivens 12 remedy.”13 13 B. Kerner’s case presents a new Bivens context that this court cannot recognize. 14 Kerner’s complaint alleges that Pisan, as an employee of the U.S. Attorney’s Office,
15 “engaged in obstruction, fabrication, and refusal to respond to lawful notices” in violation of his 16 due-process rights.14 He also accuses Pisan of “perpetuat[ing] false and medically impossible 17 18 19 20 10 Watanabe v. Derr, 115 F.4th 1034, 1038 (9th Cir. 2024) (quoting Egbert v. Boule, 596 U.S. 21 482, 492 (2022)). 11 Egbert, 596 U.S. at 493. 22 12 Id. (cleaned up). 23 13 Id. at 492 (cleaned up). 14 ECF No. 1-2 at 2. 1 narratives in federal proceedings” and “extend[ing] a pattern of delay and intimidation.”15 He 2 seeks $10,000 in damages and a civil judgment.16 3 Kerner’s claim “bear[s] little resemblance”17 to the three claims that the Supreme Court 4 has recognized under Bivens. In response to Pisan’s dismissal motion, Kerner characterizes his 5 claim as one “involving intentional interference with court access” and contends that the court
6 recognized a Bivens right of action for those types of claims in Christopher v. Harbury.18 But 7 the Christopher Court explicitly noted that “[t]he petitioners did not challenge below the 8 existence of a cause of action under Bivens” and declined to express any opinion on whether 9 such a right existed.19 The Supreme Court has not recognized a Bivens claim against someone in 10 Pisan’s official rank (paralegal) specifically or against employees of the U.S. Attorney’s Office 11 generally. Nor has it explicitly recognized a due-process or First Amendment access-to-courts 12 claim against federal prosecutors or other DOJ employees. So I conclude that this is a new 13 Bivens context. 14 The existence of alternative remedial structures is reason enough not to create a Bivens
15 remedy in this case. “So long as Congress or the Executive has created a remedial process that it 16 finds sufficient to secure an adequate level of deterrence” for employees to avoid misconduct, 17 “the courts cannot second-guess that calibration by superimposing a Bivens remedy.”20 18 19
20 15 Id. 21 16 Id. 17 Ziglar, 582 U.S. at 140. 22 18 Christopher v. Harbury, 536 U.S. 403 (2002). 23 19 Id. at 412 n.6. 20 Egbert, 596 U.S. at 498. 1 Here, the Department of Justice (DOJ) Office of the Inspector General is required by statute to 2 receive and investigate complaints alleging civil-rights and civil-liberties abuses by DOJ 3 employees, including employees of the U.S. Attorney’s Office.21 The DOJ Office of 4 Professional Responsibility is also tasked with investigating accusations of litigation misconduct 5 and ethical violations by DOJ attorneys.22 Separation-of-powers principles suggest that
6 Congress is better suited to determine whether additional remedies should be available to citizens 7 who complain of litigation misconduct and civil-rights violations by DOJ employees. So I 8 decline to create a new Bivens remedy extending to Kerner’s claims, and I grant Pisan’s motion 9 to dismiss. 10 I’ve also independently considered whether Kerner should be granted leave to amend his 11 complaint under these circumstances. Though acknowledging the Ninth Circuit’s instruction to 12 grant leave liberally when justice requires, I find that Kerner could not plead a set of facts arising 13 from the same actions that would bring this case into the Bivens fold. The basis of the claim 14 itself—a due-process violation involving interference with court access—cannot be maintained
15 under Bivens. Even if Kerner could add facts to flesh out his thin complaint, those facts would 16 not change my conclusion that the law does not recognize the legal claim he seeks to bring.23 So 17 Kerner’s complaint is dismissed without leave to amend, and I close this case. 18 21 USA PATRIOT Act, Pub. L. 107-56, § 1001; see Egbert, 596 U.S. at 497 (finding that the 19 court could not create a new Bivens remedy because the government agency at issue was required to “investigate alleged violations of the standards for enforcement activities and accept 20 grievances from any persons wishing to lodge a complaint” (cleaned up)); Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74 (2001) (declining to extend Bivens because plaintiffs had alternative 21 remedies available, “including suits in federal court for injunctive relief and grievances filed through” the federal agency’s administrative remedy program). 22 22 See ECF No. 9 at 10. 23 23 Kerner contends that Pisan’s dismissal motion should be converted into one for summary judgment and attaches exhibits that he contends the court “must consider before granting dismissal.” ECF No. 11 at 2. Kerner does not explain why this court “must” consider extrinsic Conclusion 2 IT IS THEREFORE ORDERED that Liam Pisan’s motion to dismiss [ECF No. 9] is 3] GRANTED. Kerner’s complaint is dismissed because he fails to state a Bivens claim and cannot 4} do so in these circumstances. The Clerk of Court is directed te CLOSE THIS CASE. 5 : USS. Distrist Judge J ennifer Dorsey 7 yaly 7, 2026 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 evidence on a motion to dismiss. But even if I were to consider Kerner’s evidence, which 3 consists of “ignored emails and notices” and “pre-suit demand letters” that Kerner sent Pisan, ECF No. 11 at 2, my analysis would not change because nothing in those exhibits demonstrates that this is the type of case to which Bivens should extend.