IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

BEAUMONT DIVISION

REGINALD L. GROSS §

VS. § CIVIL ACTION NO. 1:23cv279

STEPHEN J. COX §

REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff Reginald L. Gross, proceeding pro se, brings this lawsuit pursuant to Bivens v. Six

Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), against Stephen J. Cox,

Michelle S. Englade, Johnathan Clay Lee and Mark Terry. Defendant Cox was the United States

Attorney for the Eastern District of Texas. Defendants Englade and Lee were Assistant United

States Attorneys. Defendant Terry was a special agent with the Drug Enforcement Administration. 

This matter 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 Allegations

Plaintiff states that on July 1, 2020, defendants Cox and Englade filed a criminal indictment

under seal charging him with conspiring to possess a controlled substance with the intent to

distribute. At plaintiff’s initial appearance on November 9, Thomas William Kelley was appointed

to represent plaintiff.

On November 13, 2020, Plaintiff was arraigned and a detention hearing was held. Plaintiff

entered a plea of not guilty. The same day, a Scheduling Order, which included provisions

concerning pretrial discovery and inspection of evidence, was entered. Mr. Kelley filed a motion

to continue on December 18. He told plaintiff he filed the motion because the government had not

provided him with discovery.

On January 14, 2021, defendants Cox and Englade filed an Unopposed Motion for Entry of

Protective Order Governing Disclosure of Case Materials (the “Unopposed Motion”). In the

certificate of conference filed with the motion, defendant Englade certified that on November 9,

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2020, she had conferred with Mr. Kelley, who did not oppose the motion. In the motion’s certificate

of service, defendant Englade stated that a copy had been delivered to Mr. Kelley via email on

January 14, 2021. The Unopposed Motion was subsequently granted. 

Plaintiff alleges that the statement made by defendant Englade in the certificate of conference

was false. He states he did not request appointed counsel until his arraignment on November 13. 

As a result, he asserts defendant Englade could not have conferred with Mr. Kelley about the

Unopposed Motion on November 9. He states that he had not met Mr. Kelley on the date defendant

Englade stated she conferred with him.

Plaintiff describes the protective order as an umbrella order, under which all discovery is

predesignated as protected. He states that under the order, he was only allowed to view discovery

materials in the presence of counsel and was not permitted to possess case materials outside the

presence of counsel. He also asserts the protective order was filed under seal. Plaintiff states that

as the protective order limited his access to case materials, the protective order and the methods used

to obtain the order violated his rights under Brady v. Maryland, 373 U.S. 83 (1963), and the Jencks

Act, 18 U.S.C. § 3500(a).

Plaintiff alleges that on April 4, 2021, defendant Lee filed a Notice of Appearance in his

criminal case.

Plaintiff asserts that from May, 2014, through October, 2017, defendant Terry was the lead

agent in a criminal investigation. He states defendant Terry prepared a 94 page affidavit which

resulted in a wiretap being authorized. Plaintiff alleges that during trial, defendant Terry admitted

that agents failed to implement cell phone surveillance techniques known as pen registry and trap

and trace. He states defendant Terry admitted during his testimony that a single drug transaction

did not constitute a conspiracy. At the conclusion of the trial, plaintiff was found not guilty of the

offense with which he was charged.

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Standard of Review

An in forma pauperis proceeding shall be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)

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 is subject to

dismissal for failure to state a claim if the plaintiff has failed to plead “enough facts to state a claim

for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 

Analysis

Claims Against Defendants Cox, Englade and Lee

Plaintiff alleges defendants Cox, Englade and Lee acted improperly in connection with his

prosecution. For the reasons set forth below, these defendants are entitled to absolute immunity.

Prosecutors are absolutely immune from liability with respect to actions taken by them while

representing the government in judicial proceedings. Imbler v. Pachtman, 424 U.S. 409, 430-31

(1976). Actions taken by prosecutors in preparing for the initiation of judicial proceedings or for

trial and which occur in the course of their role as an advocate for the government are entitled to the

protections of absolute immunity. Boyd v. Biggers, 31 F.3d 279, 285 (5th Cir. 1994). Prosecutors

are entitled to absolute immunity even when they are alleged to have initiated or pursued a

prosecution maliciously, wantonly or negligently. Rykers v. Alford, 832 F.2d 895, 897 (5th ir. 1987).

Plaintiff’s claims against defendants Cox, Englade and Lee are based on actions takn by them

in connection with the initiation and prosecution of plaintiff’s criminal case. Defendants Cox,

Englade and Lee are therefore entitled to absolute prosecutorial immunity.

Claims Against Defendant Terry

Plaintiff alleges defendant Terry subjected him to malicious prosecution and violated his

rights under the Fourth Amendment. As explained below, plaintiff may not pursue these claims in

a Bivens action.

A. Disfavored Judicial Activity

The Supreme Court recently restated that expanding causes of action under Bivens is “a

‘disfavored’ judicial activity.” Hernandez v. Mesa, 140 S. Ct. 735, 742 (2020) (quoting Ziglar v.

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Abbasi, 137 S. Ct. 1843, 1857 (2017)). Separation-of-powers principles are central to the analysis

of whether Bivens should be expanded. The question is whether Congress or the courts should

authorize a damages lawsuit. Abbasi, 137 S. Ct. at 1857. Mindful of separation-of-powers interests,

the Court developed a two-part test. Id. at 1859-60. First, a court must ask whether a plaintiff’s

claim falls into one of three existing Bivens causes of action. Oliva v. Nivar, 973 F.3d 438, 441 (5th

Cir. 2020). Then, if a case does not fall into one of those causes of action, a court asks whether

there are “special factors counseling hesitation” in extending the remedy available under Bivens. 

Abbasi, 137 S. Ct. at 1857. The special factors inquiry concentrates on “whether the Judiciary is

well suited, absent congressional action or instruction, to consider and weigh the benefits of

allowing a damages action to proceed.” Abbasi, 137 S. Ct. at 1858. These factors include whether

Congress has legislated on the right at issue. Id. “[I]f there is an alternative remedy structure

present in a certain case,” the existence of that process “alone may limit the power of the judiciary

to infer a new Bivens cause of action.” Id. Courts are also to consider separation-of-powers

concerns. Hernandez v. Mesa, 885 F.3d 811, 818 (5th Cir. 2018) (en banc). “[T]he only relevant

threshold–that a factor counsels hesitation–is remarkably low.” Id. at 823. 

The three existing Bivens causes of action are as follows:

(1) manacling the plaintiff in front of his family in his home and strip-searching him

in violation of the Fourth Amendment, see Bivens, 403 U.S. at 389-90, 91 S. Ct. at

1999; (2) discrimination on the basis of sex by a congressman against a staff person

in violation of the Fifth Amendment, see Davis v. Passman, [442 U.S. 228 (1979)];

and (3) failure to provide medical attention to an asthmatic person in federal custody

in violation of the Eighth Amendment, see Carlson v. Green, [446 U.S. 14 (1980)].

Oliva, 973 F.3d at 442. “Virtually everything else is a ‘new context,’” Id. (quoting Abbasi, 137 S.

Ct. at 1865), because a case needs only be “different in [one] meaningful way from previous Bivens

cases” for the “context [to be] new.” Abbasi, 137 S. Ct. at 1859. “[E]ven a modest extension [of

Bivens] is still an extension.” Abbasi, 137 S. Ct. at 1864. Since Carlson, the Supreme Court has

consistently rejected “every Bivens claim presented to it.” Cantu v. Moody, 933 F.3d, 414, 421 (5th

Cir. 2019).

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B. Application

1. Malicious Prosecution

Plaintiff alleges defendant Terry subjected him to malicious prosecution. However, the

United States Court of Appeals for the Fifth Circuit has held that Bivens does not provide a vehicle

for claims of malicious prosecution. Id. As a result, plaintiff’s allegations regarding malicious

prosecution fail to state a claim upon which relief may be granted. 

2. Fourth Amendment

Plaintiff also alleges defendant Terry obtained evidence against him in violation of the

Fourth Amendment.

Bivens itself involved a Fourth Amendment claim. The plaintiff there alleged law

enforcement officers manacled him in front of his family and conducted a strip search, both in

violation of the Fourth Amendment. Here, plaintiff alleged defendant Terry, as a result of

unlawfully obtaining a wiretap authorization, violated the Fourth Amendment. Plaintiff, unlike the

plaintiff in Bivens, does not allege defendant Terry entered his home and forcibly searched him. 

Instead, plaintiff alleges defendant Terry improperly conducted electronic surveillance. The only

similarity between the allegations in this case and those in Bivens is that both cases are based on

violations of the Fourth Amendment. 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. Id. at

422. As a result, as even a modest extension of Bivens still constitutes an extension, plaintiff’s

claims arise in a different context than those asserted in Bivens.

In light of the conclusion that this case presents a new Bivens context, it must be determined

whether there are special factors counseling hesitation in extending Bivens to this context. Here, at

least one such factor exists: the presence of an alternative remedy structure. Title 5 U.S.C. §

413(b)(2) authorizes inspectors general to investigate allegations of criminal wrongdoing or

administrative misconduct by an individual like defendant Terry who is employed by the

Department of Justice. Mays v. Yarbrough, No. 22-2403, 2024 WL 198996, at *4 (D. Minn. Jan.

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18, 2024); Arias v. Herzon, 680 F. Supp. 3d 61, 68 (D.N.H. 2023). As long as Congress or the

Executive has created a remedial process that it finds sufficient “to secure an adequate level of

deterrence, the courts cannot second-guess that calibration by superimposing a Bivens remedy.” 

Egbert v. Boule, 596 U.S. 482, 498 (2022). The existence of even one special factor counseling

hesitation requires that a court refrain from an expansion of Bivens. Canada v. United States, 950

F.3d 299, 309 (5th Cir. 2020).

As plaintiff’s Fourth Amendment claim arises in a new Bivens context, and as there is a

special factor counseling hesitation regarding the expansion of the Bivens remedy, this claim may

not be brought pursuant to Bivens. The Fourth Amendment claim therefore fails to state a claim

upon which relief may be granted.

Recommendation

This Bivens lawsuit should be dismissed for seeking monetary relief from defendants

immune from such relief and for failure to state a claim upon which relief may be granted.

Objections

Objections must be (1) specific, (2) in writing, and (3) served and filed within 14 days after

being served with a copy of this report. 28 U.S.C. § 636(b)(1); FED.R.CIV. P. 6(a), 6(b) and 72(b).

A party's failure to object bars that party from (1) entitlement to de novo review by a district

judge of proposed findings and recommendations, Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th

Cir. 1988), and (2) appellate review, except on grounds of plain error, of unobjected-to factual

findings and legal conclusions accepted by the district court, Douglass v. United Serv. Auto. Ass’n,

79 F.3d 1415, 1429 (5th Cir. 1996) (en banc).

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_________________________

Zack Hawthorn

United States Magistrate Judge SIGNED this 7th day of June, 2024.

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