UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

K.B., by and through her next friend, 

ANGELA BOURELLE, 

 Plaintiff - Appellant, 

v. 

CHRISTOPHER J. PEREZ, in his personal 

capacity, 

 Defendant - Appellee. 

No. 16-1155 

(D.C. No. 1:14-CV-03514-WPJ-NYW) 

(D. Colo.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before TYMKOVICH, Chief Judge, PHILLIPS and McHUGH, Circuit Judges. 

_________________________________ 

K.B. appeals the district court’s dismissal of her claim under Bivens v. Six 

Unknown Named Agents, 403 U.S. 388 (1971), against her father’s probation officer 

after she was denied visitation with her father while he was serving part of his term 

of imprisonment at a halfway house. Exercising jurisdiction under 28 U.S.C. § 1291, 

we affirm. 

 *

 After examining the briefs and appellate record, this panel has determined 

unanimously to honor the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

submitted without oral argument. This order and judgment is not binding precedent, 

except under the doctrines of law of the case, res judicata, and collateral estoppel. It 

may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 

and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals

Tenth Circuit 

December 2, 2016

Elisabeth A. Shumaker 

Clerk of Court
2 

I. Background 

 K.B.’s father was convicted in a Florida federal court of distribution of child 

pornography and sentenced to five years imprisonment followed by ten years of 

supervised release. He finished his term of imprisonment at a halfway house in 

Colorado, where K.B. and her sister and mother visited him several times. According 

to the complaint, the person assigned to become her father’s probation officer upon 

his release from the halfway house directed staff there not to allow K.B. visitation 

because she was a minor and the Colorado Sex Offender Management Board 

(“SOMB”) guidelines prohibited such contact. 

In response to the staff’s concerns, K.B.’s father produced an order from the 

sentencing court pertaining to the conditions of his release. The order requires 

K.B.’s father to complete an approved sex offender evaluation and treatment program 

but also states: “Nothing in this approved program . . . can prevent the Defendant 

from having unsupervised contact with his minor children, inside or outside his 

home, without additional condition.” Aplt. App., Vol. 1 at 47. The order reiterates 

that otherwise applicable rules under the SOMB guidelines would not apply to K.B’s 

father “to the extent [they] would otherwise prevent contact with his children.” Id. at 

48. Although the order sets forth the conditions that would apply to K.B.’s father 

upon leaving the halfway house, the staff apparently interpreted it to mean that K.B. 

was permitted to visit him while he was still there. She was allowed visitation with 

her father for a few more weeks until, according to the complaint, her father’s 

probation officer directed staff at the halfway house to ignore the court order, 
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explaining that “he was trying to get ‘clarification’” on it. Id. at 12. K.B. was not 

allowed visitation for about seven weeks. After that, for reasons not explained in the 

complaint, she was again able to resume visiting her father. A few months later he 

began his term of supervised release and moved home with K.B. and her sister and 

mother. The complaint alleges that the probation officer caused K.B. to suffer 

“severe emotional distress as a result of [his] arbitrary and illegal actions in 

unlawfully exerting his authority, when no authority existed[,] which resulted in the 

termination of her visitation with her Father.” Id. at 13. 

The district court granted the probation officer’s motion to dismiss K.B.’s 

complaint for failure to state a claim, concluding there was no implied damages 

action under Bivens based on a federal official’s interference with the constitutional 

right of familial association and declining to create such a remedy. In the alternative, 

the court further concluded the probation officer was entitled to qualified immunity 

because it was not clearly established that applying the SOMB guidelines to K.B.’s 

father was improper. 

II. Analysis 

 K.B. first argues that the court erred by concluding that she failed to state a 

claim under Bivens based on the legal theory that her father’s probation officer could 

be held liable for depriving her of her right to familial association with her father. 

Because we agree that no Bivens remedy is available, we do not address K.B.’s 

argument with respect to the probation officer’s qualified immunity. 
4 

 We review de novo the district court’s dismissal of a complaint for failure to 

state a claim. Shimomura v. Carlson, 811 F.3d 349, 358 (10th Cir. 2015). “Like the 

district court, we must determine whether the complaint contains sufficient facts, 

accepted as true, to state a plausible claim for relief.” Id. (citing Ashcroft v. Iqbal, 

556 U.S. 662, 678 (2009)). We view the factual allegations in the light most 

favorable to K.B. as the nonmoving party and draw all reasonable inferences in her 

favor. See Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009). 

 The right to familial association is a constitutionally-protected liberty interest. 

Bryson v. City of Edmond, 905 F.2d 1386, 1393 (10th Cir. 1990). However, neither 

the Supreme Court nor this court has authorized an action under Bivens to redress a 

violation of this right. Instead, claims brought under Bivens have been dismissed on 

other grounds, without requiring courts to decide whether to create new Bivens

remedies. See, e.g., Reichle v. Howards, 132 S. Ct. 2088, 2093 n.4 (2012) (finding 

defendants were entitled to qualified immunity without deciding “whether Bivens

extends to First Amendment retaliatory arrest claims”); Pahls v. Thomas, 718 F.3d 

1210, 1226 n.6 (10th Cir. 2013) (assuming “for purposes of this case only” that a 

Bivens remedy was available but observing that “[t]he Supreme Court has been 

reluctant to extend Bivens liability to any new context or new category of 

defendants” (internal quotation marks omitted)). 

To determine whether we should recognize a Bivens remedy under the 

circumstances of this case, we first consider “whether any alternative, existing 

process for protecting the interest amounts to a convincing reason for the Judicial 
5 

Branch to refrain from providing a new and freestanding remedy in damages.” 

Ingram v. Faruque, 728 F.3d 1239, 1244 (10th Cir. 2013) (internal quotation marks 

omitted). “Second, even in the absence of an alternative, . . . [we] must make the 

kind of remedial determination that is appropriate for a common-law tribunal, paying 

particular heed to any special factors counseling hesitation before authorizing a new 

kind of federal litigation.” Id. (ellipsis and internal quotation marks omitted). 

 With regard to the first inquiry, we note that in the context of this case, K.B.’s 

right to familial association is coextensive with her father’s. K.B. concedes that her 

father had access to remedial mechanisms for vindicating violations of his right to 

familial association, such as filing a grievance through the Administrative Remedy 

Program, see 28 C.F.R. § 542.10(a) (“The purpose of the Administrative Remedy 

Program is to allow an inmate to seek formal review of an issue relating to any aspect 

of his/her confinement.”), or bringing a federal suit for injunctive relief, see Corr. 

Servs. Corp. v. Malesko, 534 U.S. 61, 74 (2001). 

Even assuming that such remedies do not provide an adequate basis to 

vindicate violations of K.B.’s right to familial association, we conclude that 

authorizing a new kind of federal litigation is not warranted here. First, extending 

Bivens would be contrary to the strong trend of limiting its reach. See Minneci v. 

Pollard, 132 S. Ct. 617, 622 (2012) (noting that the Supreme Court has consistently 

declined to fashion a Bivens remedy since 1980); see also Malesko, 534 U.S. at 74 

(“The caution toward extending Bivens remedies into any new context, a caution 

consistently and repeatedly recognized for three decades, forecloses such an 
6 

extension here.”). Moreover, doing so here could lead to unintended, unpredictable, 

and far-reaching consequences, including inviting a wide range of actions by family 

members of prisoners. Should Congress wish to confer the right to bring such 

actions, it has the authority to do so; but we decline to imply a cause of action of 

such potentially broad scope under these circumstances. 

III. Conclusion 

 The district court’s judgment is affirmed. 

Entered for the Court 

Gregory A. Phillips 

Circuit Judge