IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

MICHAEL RAY FORBES, § 

BOP Register No. 13302-078, § 

 § 

Plaintiff, § 

§ 

V. § No. 3:22-cv-687-E-BN 

§ 

R. ZOOK, ET AL., § 

§ 

Defendants. § 

SUPPLEMENTAL FINDINGS, CONCLUSIONS, AND RECOMMENDATION 

OF THE UNITED STATES MAGISTRATE JUDGE 

Plaintiff Michael Ray Forbes, a federal prisoner, initially brought this pro se

lawsuit under the Federal Tort Claims Act, alleging that, during his transfer from 

FCI Seagoville to FMC Fort Worth in December 2020, the Federal Bureau of Prisons 

lost personal property of his valued at $2,090. See Dkt. No. 3. United States District 

Judge Ada Brown referred Forbes’s lawsuit to the undersigned United States 

magistrate judge for pretrial management under 28 U.S.C. § 636(b) and a standing 

order of reference. And, on April 6, 2022, the undersigned entered findings of fact and 

conclusions of law recommending that the Court dismiss Forbes’s claims under the 

FTCA for lack of jurisdiction [Dkt. No. 5] (the FTCA FCR). 

Forbes then objected to the FTCA FCR and filed his one amended complaint 

allowed as a matter of course. See Dkt. Nos. 6, 7. Through both, he states his intent 

to bring claims under 42 U.S.C. § 1983 against the same individual federal 

defendants and based on the same underlying facts, but he now claims that his 

personal property was stolen, not lost. See, e.g., Dkt. No. 7 at 4 (“The issue is 

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straightforward, either [the defendants] stole plaintiff’s property or where is it?”). 

The undersigned therefore supplements the FTCA FCR by entering these 

findings of fact, conclusions of law, and recommendation that the Court should 

dismiss Forbes’s claims under the Constitution with prejudice. 

Legal Standards and Analysis 

“A plaintiff makes out a § 1983 claim if he ‘shows a violation of the Constitution 

or of federal law, and then shows that the violation was committed by someone acting 

under color of state law.’” Rich v. Palko, 920 F.3d 288, 293-94 (5th Cir. 2019) (cleaned 

up and emphasis added; quoting Brown v. Miller, 519 F.3d 231, 236 (5th Cir. 2008)); 

accord Thurman v. Med. Transp. Mgmt., Inc., 982 F.3d 953, 956 (5th Cir. 2020). As 

against a federal officer or employee, Bivens v. Six Unknown Named Agents of Federal 

Bureau of Narcotics, 403 U.S. 388 (1971), first allowed “an implied damages remedy 

under the Constitution itself,” Ziglar v. Abbasi, 137 S. Ct. 1843, 1855 (2017). But 

Bivens, unlike Section 1983, is not a Congressional statute that “entitles an injured 

person to money damages if [an] official violates his or her constitutional rights.” 

Abbasi, 137 S. Ct. at 1854 (“Congress did not create an analogous statute for federal 

officials. Indeed, in the 100 years leading up to Bivens, Congress did not provide a 

specific damages remedy for plaintiffs whose constitutional rights were violated by 

agents of the Federal Government.”). 

And the United States Supreme Court “has approved of an implied damages 

remedy under the Constitution itself” only three times – in Bivens, to enforce “a 

damages remedy to compensate persons injured by federal officers who violated the 

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prohibition against unreasonable search and seizures” in violation of the Fourth 

Amendment; in Davis v. Passman, 442 U.S. 228 (1979), holding “that the Fifth 

Amendment Due Process Clause gave [a Congressman’s administrative assistant] a 

damages remedy for gender discrimination”; and in Carlson v. Green, 446 U.S. 14 

(1980), holding “that the Eighth Amendment Cruel and Unusual Punishments 

Clause gave [a prisoner] a damages remedy for failure to provide adequate medical 

treatment.” Abbasi, 137 S. Ct. at 1854-55. 

In Abbasi, the Supreme Court further “stressed that any extension of Bivens

to new factual scenarios is now a ‘“disfavored” judicial activity.’” Maria S. ex rel. EHF 

v. Garza, 912 F.3d 778, 783 (5th Cir. 2019) (quoting Abbasi, 137 S. Ct. at 1857 

(quoting, in turn, Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009))); accord Oliva v. Nivar, 

973 F.3d 438, 442 (5th Cir. 2020) (“Bivens was the product of an ‘ancien regime’ that 

freely implied rights of action. That regime ended long ago. Today, Bivens claims 

generally are limited to the circumstances of the Supreme Court’s trilogy of cases in 

this area....” (citations omitted)), cert. denied, 141 S. Ct. 2669 (2021); Byrd v. Lamb, 

990 F.3d 879, 881 (5th Cir. 2021) (per curiam) (“The Supreme Court has cautioned 

against extending Bivens to new contexts.” (citing Hernandez v. Mesa, 140 S. Ct. 735, 

744 (2020) (Hernandez II); Abbasi, 137 S. Ct. at 1861)); Butler v. S. Porter, 999 F.3d 

287, 293 (5th Cir. 2021) (“Indeed, in recent decades, the Supreme Court has 

‘consistently refused to extend Bivens to any new context.’” (quoting Corr. Servs. Corp. 

v. Malesko, 534 U.S. 61, 68 (2001); citation omitted)). 

So, as to whether Forbes may assert claims against the individual defendants 

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for alleged constitutional violations, the Court should consider the “two part inquiry 

for determining whether to allow a Bivens cause of action: (1) whether the instant 

case involves a ‘new context’ that is distinct from prior Bivens cases and (2) whether 

any ‘special factors’ preclude extending Bivens to this ‘new context.’” Maria S., 912 

F.3d at 784 (citation omitted); accord Oliva, 973 F.3d at 441-42 (“Courts confronting 

Bivens claims generally ‘must ask two questions. First, do [the plaintiff’s] claims fall 

into one of the three existing Bivens actions? Second, if not, should we recognize a 

new Bivens action here?’” (quoting Cantú v. Moody, 933 F.3d 414, 422 (5th Cir. 

2019))); Byrd, 990 F.3d at 881 (“Only where a claim arises in a new context should 

courts then proceed to the second step of the inquiry, and contemplate whether there 

are ‘any special factors that counsel hesitation about granting the extension.’” 

(quoting Hernandez II, 140 S. Ct. at 743)). 

“The proper test for determining whether a case presents a new 

Bivens context is” whether it is “different in a meaningful way from 

previous Bivens cases decided by” the Supreme Court. Abbasi, 137 S. Ct. 

at 1859. A meaningful difference may include the Constitutional right 

at issue, the statutory or other legal mandate under which the officer 

was operating, or the presence of potential special factors that previous 

Bivens cases did not consider. Id. at 1860. “[E]ven a modest extension is 

still an extension.” Id. at 1864. 

Canada v. United States, 950 F.3d 299, 307 (5th Cir. 2020) (citation modified). 

In short, “the proper test is whether the case differs in a meaningful way from 

Bivens, Davis, or Carlson.” Id. (citing Abbasi, 137 S. Ct. at 1859; Loumiet v. United 

States, 948 F.3d 376, 381-82 (D.C. Cir. 2020)). And, in practice, “[v]irtually everything 

else” – any case falling outside the specifics of these three cases – “is a ‘new context.’” 

Oliva, 973 F.3d at 442 (citing Abbasi, 137 S. Ct. at 1865); see also Byrd, 990 F.3d at 

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883 (Willett, J., specially concurring) (“The Bivens doctrine, if not overruled, has 

certainly been overtaken.” And, at least in this circuit, after Oliva, “‘[v]irtually 

everything’ beyond the specific facts of the Bivens trilogy ‘is a “new context”’ .... And 

new context = no Bivens claim.” (footnote omitted)).1

The facts of this case, further set out in the FTCA FCR, meaningfully differ 

from the three cases where the Supreme Court “approved of an implied damages 

remedy under the Constitution itself.” Abbasi, 137 S. Ct. at 1855. And, since this case 

presents a “next context,” distinct from prior Bivens cases, the Court must 

“contemplate whether there are ‘any special factors that counsel hesitation about 

granting the extension.’” Byrd, 990 F.3d at 881 (quoting Hernandez II, 140 S. Ct. at 

743; emphasis added); see Butler, 999 F.3d at 294 (“Importantly, ‘[e]ven before Abbasi

clarified the special factors inquiry, we agreed with our sister circuits that the only 

relevant threshold – that a factor counsels hesitation – is remarkably low.” (citation 

omitted)). 

This “inquiry ‘concentrate[s] on whether the Judiciary is well suited, absent 

congressional action or instruction, to consider and weigh the costs and benefits of 

1 See, e.g., Cantú, 933 F.3d at 422-23 (“Cantú purports to address the first 

question. And he thinks he’s home free because his malicious-prosecution-typeclaim alleges a violation of his Fourth Amendment right to be free from unlawful 

seizures – the same right recognized in Bivens. That’s wrong. Courts do not define a 

Bivens cause of action at the level of ‘the Fourth Amendment’ or even at the level of 

‘the unreasonable-searches-and-seizures clause.’ .... [But, w]hat if a plaintiff asserts 

a violation of the same clause of the same amendment in the same way? That still 

doesn’t cut it. .... [In sum, b]y any measure, Cantú’s claims are meaningfully 

different from the Fourth Amendment claim at issue in Bivens. He does not allege 

the officers entered his home without a warrant or violated his rights of privacy.”).

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allowing a damages action to proceed.’” Butler, 999 F.3d at 294 (quoting Abbasi, 137 

S. Ct. at 1857-58). That is, “[t]he ‘most important’ Bivens question is ‘who should 

decide whether to provide for a damages remedy, Congress or the courts?’” Watkins 

v. Three Admin. Remedy Coordinators of Bureau of Prisons, 998 F.3d 682, 685 (5th 

Cir. 2021) (quoting Hernandez II, 140 S. Ct. at 750). And, “‘[w]hen a party seeks to 

assert an implied cause of action under the Constitution,’ as in this case, ‘separationof-powers principles ... should be central to the analysis.’” Byrd, 990 F.3d at 882 

(quoting Abbasi, 137 S. Ct. at 1857). 

The administration of the federal prison system qualifies as a special factor 

that should prevent the Court’s creating an implied cause of action under Bivens for 

the context of this case. See Petzold v. Rostollan, 946 F.3d 242, 248 n.2 (5th Cir. 2019) 

(“[W]e are unlikely to imply a Bivens remedy for this new context as ‘special factors’ 

counsel hesitation in federal prison administration.” (citation omitted)); Callahan v. 

Fed. Bureau of Prisons, 965 F.3d 520, 524 (6th Cir. 2020) (“‘[L]egislative action 

suggesting that Congress does not want a damages remedy’ counsels against judicial 

do-it-yourself projects. Congress paid close attention to inmate constitutional claims 

when it enacted the [PLRA]. The Act ‘does not provide for a standalone damages 

remedy against federal jailers.’” (quoting Abbasi, 137 S. Ct. at 1865; citations 

omitted)); Watkins v. Carter, No. 20-40234, 2021 WL 4533206, at *2 (5th Cir. Oct. 4, 

2021) (per curiam) (“[T]here are special factors that counsel hesitation. The existence 

of the Federal Tort Claims Act weighs against inferring a new cause of action. See 

Cantú, 933 F.3d at 423 (citing 28 U.S.C. § 2680(h)). Additionally, the existence of the 

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BOP’s Administrative Remedy Program provides an alternative method of relief to 

Bivens actions. Malesko, 534 U.S. at 74; 28 C.F.R. § 542.10 (2001).” (citations 

modified)). 

Accordingly, because this “case is a new context and there are special factors 

that counsel hesitation, [Forbes] does not have a viable Bivens claim against the 

[individual defendants].” Watkins, 2021 WL 4533206, at *3. 

Recommendation

For the reasons set out in the April 6, 2022 findings of fact, conclusions of law, 

and recommendation, the Court should dismiss Plaintiff Michael Ray Forbes’s claims 

under the Federal Tort Claims Act for lack of jurisdiction, and, insofar as Forbes has 

amended his claims to allege constitutional violations, see Dkt. Nos. 6, 7, the Court 

should dismiss those claims with prejudice for the reasons explained above. 

A copy of these findings, conclusions, and recommendation shall be served on 

all parties in the manner provided by law. Any party who objects to any part of these 

findings, conclusions, and recommendation must file specific written objections 

within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV.

P. 72(b). In order to be specific, an objection must identify the specific finding or 

recommendation to which objection is made, state the basis for the objection, and 

specify the place in the magistrate judge’s findings, conclusions, and recommendation 

where the disputed determination is found. An objection that merely incorporates by 

reference or refers to the briefing before the magistrate judge is not specific. Failure 

to file specific written objections will bar the aggrieved party from appealing the 

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factual findings and legal conclusions of the magistrate judge that are accepted or 

adopted by the district court, except upon grounds of plain error. See Douglass v. 

United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996). 

DATED: April 22, 2022 

 _________________________________________ 

DAVID L. HORAN 

UNITED STATES MAGISTRATE JUDGE 

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