IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

BEAUMONT DIVISION

DUSTY A. DRYWATER §

VS. § CIVIL ACTION NO. 1:23-CV-285 

WARDEN DOBBS, ET AL. §

 REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff Dusty A. Drywater, a prisoner previously confined at the United States Penitentiary

in Beaumont, Texas, proceeding pro se, filed this civil rights action pursuant to Bivens v. Six

Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and the Federal Tort Claims

Act (FTCA) against Warden Dobbs, an unidentified food services administrator, and the United

States of America.

The action was referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636 for

findings of fact, conclusions of law, and recommendations for the disposition of the case.

Factual Background

Plaintiff complains of the conditions of confinement at the United States Penitentiary in

Beaumont. Plaintiff asserts that there was a hole in the floor of the kitchen where he was assigned

to work. Plaintiff alleges he spoke with a food services administrator and Defendant Dobbs to report

the hole, but the defendants did not take any action to fix it. On June 10, 2021, Plaintiff slipped and

fell due to the hole in the kitchen floor. Plaintiff alleges he suffered a broken leg and required

surgery to insert a metal rod in his leg.

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Standard of Review

An in forma pauperis proceeding may be dismissed pursuant to 28 U.S.C. § 1915(e) if it: 

(1) is frivolous or malicious, (2) fails to state a claim upon which relief may be granted or (3) seeks

monetary relief from a defendant who is immune from such relief.

A complaint, containing as it does both factual allegations and legal conclusions, is frivolous

if it lacks an arguable basis either in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989);

McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997). A complaint lacks an arguable basis

in law if it is based on a clearly meritless legal theory. See Siglar v. Hightower, 112 F.3d 191, 193

(5th Cir. 1997). A complaint lacks an arguable basis in fact if, after providing the plaintiff the

opportunity to present additional facts when necessary, the facts alleged are clearlybaseless. Denton

v. Hernandez, 504 U.S. 25, 32 (1992).

A complaint does not need to contain detailed factual allegations, but the plaintiff must allege

sufficient facts to show more than a speculative right to relief. Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 555 (2007). Dismissal for failure to state a claim is appropriate if the complaint does not

include enough facts to state a claim that is plausible on its face. Id. at 570. Conclusory allegations

and a formulaic recitation of the elements of a cause of action will not suffice to prevent dismissal

for failure to state a claim. Id. at 555. The plaintiff must plead facts that allow the court to “draw

the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009). 

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Analysis 

Bivens Claims

A victim who has suffered a constitutional violation by a federal actor may, in some

instances, recover damages in federal court. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S.

388, 395-97 (1971). Title 42 U.S.C. § 1983 allows individuals to sue for money damages when their

constitutional rights are violated by state officials, but there is no analogous statute allowing

individuals to recover damages for violations of their constitutional rights byfederal officials. Ziglar

v. Abbasi, 582 U.S. 120, 130 (2017). An individual’s right to recover damages from federal officials

for violations of constitutional rights was first recognized by the United States Supreme Court in

Bivens v. Six Unknown Fed. Narcotics Agents. In Bivens, the plaintiff alleged that federal agents

entered and searched his apartment without a warrant and arrested him on a narcotics charge, and

that all of these actions were taken without probable cause. Bivens, 403 U.S. at 389. The Supreme

Court held that there was an implied cause of action for damages under the Fourth Amendment for

alleged violations of the plaintiff’s right to be free from unreasonable searches and seizures by

federal officials. Id. at 397. The Supreme Court subsequently extended Bivens to create implied

causes of action for gender discrimination under the Due Process Clause of the Fifth Amendment,

Davis v. Passman, 422 U.S. 228 (1979), and for failing to provide adequate medical treatment as

required by the Cruel and Unusual Punishment Clause of the Eighth Amendment, Carlson v. Green,

446 U.S. 14 (1980). 

Bivens, Davis, and Carlson were decided during a time when the Supreme Court “would

imply causes of action not explicit in the statutory text itself” in order to provide a remedy to

effectuate the statute’s purpose. Ziglar, 582 U.S. at 132. Under this judicial approach, it appeared

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to be possible that Bivens could be expanded to allow causes of action against federal officials for

every constitutional cause of action against state officials permitted by § 1983. Id. In later cases,

the Supreme Court took a more measured approach to implying causes of action for damages, and

“the Court has made clear that expanding the Bivensremedy is now a ‘disfavored’ judicial activity.” 

Id. at 132-35 (citing Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). Over the past forty years, the

Supreme Court has repeatedly declined to extend Bivens to allow new constitutional claims. 

Hernandez v. Mesa, 589 U.S. , 140 S. Ct. 735, 743 (2020). 

In light of the Supreme Court’s current approach to such cases, federal courts must now

engage in a two-step inquiry when deciding whether to extend Bivens to new cases. Id. First, the

court must determine whether the request to extend Bivens “involves a claim that arises in a ‘new

context’ or involves a ‘new category of defendants.’” Id. (citing Corr. Servs. Corp. v. Malesko, 534

U.S. 61, 68 (2001)); see also Cantú v. Moody, 933 F.3d 414, 422 (5th Cir. 2019) (noting that the

court must first determine whether the plaintiff’s claims “fall into one of the three existing Bivens

actions). A case presents a new context if it is different in a meaningful way from previous Bivens

cases decided by the Supreme Court. Ziglar, 582 U.S. at 139. The Supreme Court provided the

following, non-exhaustive list of cases that present meaningful differences:

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 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.

Id. at 139-40. 

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Second, if the claim does arise in a new context, the court must consider whether there are

“special factors” that counsel hesitation about extending Bivens. Id. at 140. Special factors may

include, but are not limited to: the availability of a statutory cause of action; the length of time

Congress has had to create a Bivens-like cause of action for that particular context, and the

underlying nature of the federal official’s activity. Cantú, 933 F.3d at 422. If there are special

factors, then the court should not extend Bivens. Ziglar, 582 U.S. at 136; see also Canada v. United

States, 950 F.3d 299, 309 (5th Cir. 2020) (noting that courts must refrain from creating an implied

cause of action if any special factors exist). 

Plaintiff’s claim that he was subjected to unconstitutional condition of confinement is a new

context because the Supreme Court has not previously recognized an implied cause of action for this

type of claim. There are special factors counseling hesitation in extending Bivens to create new a

cause of action for claims concerning the conditions of confinement, including the availability of

other remedies. See Springer v. United States, No. 21-11248, 2022 WL 2208516, at *1 (5th Cir.

June 21, 2022). 

First, the Bureau of Prisons’s administrative remedy procedure provides an alternate method

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

that the BOP’s Administrative RemedyProgram provides an alternative method of relief to a Bivens

action). In some cases, the Federal Tort Claims Act also provides an avenue to pursue monetary

claims for damages for negligent or wrongful acts committed by government employees. Dickson

v. United States, 11 F.4th 308, 312 (5th Cir. 2021). Second, the separation of powers is another

special factor weighing against extending Bivens because Congress has had the occasion to consider

prisoner rights, but has not legislated to extend the reach of Bivens. Watkins v. Three Admin.

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Remedy Coordinators, 988 F.3d 682, 685-86 (5th Cir. 2021) (declining to extend Bivens to include

a First Amendment claim of retaliation).

Because there are at least two other avenues of relief through the Administrative Remedy

Program and the FTCA, and because Congress has not legislated to extend Bivens beyond the three

causes of action recognized bythe Supreme Court, Plaintiff does not have viable claims under Bivens

against individual defendants for claims regarding the conditions of Plaintiff’s confinement at the

Beaumont penitentiary.

 FTCA Claims

The FTCA provides a limited waiver of sovereign immunity. The statute allows the United

States to be held liable to the same extent as a private employer for certain common law torts of

government employees acting within the scope of their employment. 28 U.S.C. § 1346(b). Federal

employees themselves cannot be held personally liable for common law torts committed within the

scope of their employment. 28 U.S.C. § 2679(b). The United States is the only proper defendant

in an FTCA action. Galvin v. Occupational Safety & Health Admin., 860 F.2d 181, 183 (5th Cir.

1988). An FTCA claim against a government agency or employee must be dismissed for want of

jurisdiction. Id. 

Plaintiff properly identified the United States as a defendant in this FTCA action, but he also

identified two individuals as defendants. Because the court lacks subject-matter jurisdiction to

adjudicate FTCA claims against the individual defendants, the claims against the defendants other

than the United States must be dismissed.

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Recommendation

The Bivens claims should be dismissed pursuant to 28 U.S.C. § 1915(e) for failure to state

a claim upon which relief may be granted, and Defendants Dobbs and the unidentified Food Services

Administrator should be dismissed from this action.

Objections

Within fourteen days after receipt of the magistrate judge’s report, any party may serve and

file written objections to the findings of facts, conclusions of law and recommendations of the

magistrate judge. 28 U.S.C. § 636(b)(1)(C).

Failure to file written objections to the proposed findings of facts, conclusions of law and

recommendations contained within this report within fourteen days after service shall bar an

aggrieved party from the entitlement of de novo review by the district court of the proposed findings,

conclusions and recommendations and from appellate review of factual findings and legal

conclusions accepted by the district court except on grounds of plain error. Douglass v. United

Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc); 28 U.S.C. § 636(b)(1); FED. R.

CIV. P. 72. 

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_________________________

Zack Hawthorn

United States Magistrate Judge SIGNED this 2nd day of November, 2023.

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