UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

MICHAEL A. BACON, 

 Plaintiff - Appellant, 

v. 

DERRIK MARSHALL; JUDICIAL 

SUPERVISION SERVICES, 

 Defendants - Appellees. 

No. 23-4071 

(D.C. No. 2:21-CV-00701-HCN) 

(D. Utah) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before BACHARACH, KELLY, and MORITZ, Circuit Judges. 

_________________________________ 

Michael Bacon, proceeding pro se, appeals the district court’s order dismissing 

his complaint for failure to state a claim under Bivens v. Six Unknown Named Agents 

of Federal Bureau of Narcotics, 403 U.S. 388 (1971), or 42 U.S.C. § 1983.1

 Because 

Bacon waived appellate review by failing to challenge much of the district court’s 

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

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered 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. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 

10th Cir. R. 32.1(A). 

1

 We liberally construe Bacon’s pro se filings, but we will not act as his 

advocate. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 

2005). 

FILED 

United States Court of Appeals 

Tenth Circuit 

December 7, 2023

Christopher M. Wolpert 

Clerk of Court

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order and because the district court correctly determined that Bacon’s allegations 

constitute a new Bivens context with at least one special factor counseling against 

extending that remedy, we affirm. 

Background 

Bacon alleges that various John Does, Derrik Marshall (his federal probation 

officer), and Judicial Supervision Services (JSS, a private contractor that collects 

urine samples for probation services) violated his rights under the Fourth, Fifth, 

Eighth, and Fourteenth Amendments of the United States Constitution. In particular, 

Bacon alleges that Marshall held a grudge against him because of his involvement in 

a prior lawsuit that made it more difficult for the government to protect the identity 

of its cooperators.2

 According to Bacon, Marshall said that he would make sure 

Bacon had a “difficult time” and “would not be fair with [Bacon].” R. 51 

(capitalization standardized). Bacon further alleges that Marshall caused him to 

become homeless and then had him arrested because he was homeless. He also 

alleges that Marshall fabricated probation violations as pretext for Bacon’s arrest and 

lied to a magistrate judge about Bacon’s conduct so that Bacon would remain 

2

 This allegation is presumably related to proceedings in which Bacon sought 

to unseal the supplement to his plea agreement because it stated that he had not 

cooperated with the government. See United States v. Bacon, 950 F.3d 1286, 1290 

(10th Cir. 2020). The district court refused to unseal the supplement, citing a local 

rule requiring all plea supplements be sealed to create “uniformity,” ostensibly to 

protect the identity of cooperators. Id. (quoting R. vol. 1, 45). On appeal, we vacated 

and remanded the district court’s decision after concluding that it plainly erred by 

ignoring the common-law presumption of access to judicial records and failing to 

make case-specific findings to support sealing. Id. at 1293, 1297. 

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incarcerated. In addition, Bacon alleges that JSS, with Marshall’s approval, 

committed “a form of sexual assault and a form of rape” when it forced him to 

remove his clothing before providing a urine sample. Id. at 53 (capitalization 

standardized). 

A magistrate judge screened Bacon’s in forma pauperis (IFP) complaint under 

28 U.S.C. § 1915(e)(2)(B) and recommended dismissing it sua sponte for failure to 

state a claim. The magistrate judge determined that because Bacon alleged defendants 

acted under color of federal law, not state law, his claims were properly brought 

under Bivens, not § 1983. And the magistrate judge further recommended dismissing 

those Bivens claims because (1) Bacon’s allegations that Marshall committed perjury 

to revoke Bacon’s supervised release constituted a new Bivens context not previously 

recognized by the Supreme Court and (2) Bacon’s ability to bring suit against 

Marshall under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2674, and the 

“potential interference with the important work of supervising officers” counseled 

against extending the Bivens remedy. R. 128. The magistrate judge also concluded 

that Bacon’s Bivens claims against JSS—a private entity acting under color of federal 

law—was precluded by Supreme Court precedent declining to extend the Bivens 

remedy to actions against private federal contractors. See Corr. Servs. Corp. v. 

Malesko, 534 U.S. 61, 66 (2001). 

The district court adopted the magistrate judge’s report and recommendation in 

its entirety over Bacon’s objections. And it later denied Bacon’s reconsideration 

motion, reiterating that Bacon could not rely on § 1983 to sue JSS or any individual 

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defendants because he alleged no facts to support the proposition that defendants had 

acted under color of state law. The district court also noted Bacon failed to state a 

claim under the FTCA because he had not presented his claims to the appropriate 

federal agency first. 

Bacon appeals. 

Analysis

“We review de novo the district court’s decision to dismiss an IFP complaint 

under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim.” Kay v. Bemis, 500 

F.3d 1214, 1217 (10th Cir. 2007). “In determining whether a dismissal is proper, we 

must accept the allegations of the complaint as true and construe those allegations, 

and any reasonable inferences that might be drawn from them, in the light most 

favorable to the plaintiff.” Gaines v. Stenseng, 292 F.3d 1222, 1224 (10th Cir. 2002). 

“Dismissal of a pro se complaint for failure to state a claim is proper only where it is 

obvious that the plaintiff cannot prevail on the facts he has alleged and it would be 

futile to give him an opportunity to amend.” Curley v. Perry, 246 F.3d 1278, 1281 

(10th Cir. 2001) (quoting Perkins v. Kan. Dep’t of Corrs., 165 F.3d 803, 806 (10th 

Cir. 1999)). 

On appeal, Bacon asserts simply that he should be able to sue Marshall and 

JSS, but he does nothing to develop that position. At best, he seeks to incorporate by 

reference the arguments he raised below, which we do not permit. See Fed. R. App. 

P. 28.3(B) (stating that “[i]ncorporating by reference portions of lower court or 

agency briefs or pleadings is disapproved and does not satisfy” our briefing 

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requirements). Bacon has therefore waived any challenge to most of the district 

court’s rulings, including that his § 1983 claims fail for lack of state action and that 

his Bivens claim against JSS is barred by binding Supreme Court precedent. See

United States v. Fisher, 805 F.3d 982, 990–91 (10th Cir. 2015) (finding arguments 

waived through inadequate appellate briefing). The only argument even passingly 

developed in Bacon’s brief is his position that the district court erred in holding that 

the FTCA provided an alternative remedy counseling against extending Bivens to his 

claims against Marshall, so this is the only argument we will consider here. 

In Bivens, the Supreme Court recognized a cause of action against federal 

officials for alleged Fourth Amendment violations. See Egbert v. Boule, 596 U.S. 

482, 490 (2022). And “[o]ver the following decade, the Court twice again fashioned 

new causes of action under the Constitution—first, for a former congressional 

staffer’s Fifth Amendment sex-discrimination claim; and second, for a federal 

prisoner’s inadequate-care claim under the Eighth Amendment.” Id. at 490–91 

(citations omitted). However, “[s]ince these cases, the Court has not implied 

additional causes of action under the Constitution.” Id. at 491. 

The Supreme Court has instructed that when faced with Bivens claims, lower 

courts should engage in a two-step inquiry, as the district court did here. The first 

question is whether the case presents a new context in that it is “‘meaningful[ly]’ 

different from the three cases in which the Court has implied a damages action.” Id.

at 492 (alteration in original) (quoting Ziglar v. Abbasi, 582 U.S. 120, 139 (2017)). 

“Second, if a claim arises in a new context, a Bivens remedy is unavailable if there 

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are ‘special factors’ indicating that the [j]udiciary is at least arguably less equipped 

than Congress to ‘weigh the costs and benefits of allowing a damages action to 

proceed.’” Id. (quoting Ziglar, 582 U.S. at 136). Moreover, the Supreme Court has 

explained “those [two] steps often resolve to a single question: whether there is any 

reason to think that Congress might be better equipped to create a damages remedy.” 

Id. 

 Here, the district court concluded that Bacon’s allegations that Marshall 

committed perjury to revoke Bacon’s supervised release were “different in a 

meaningful way from previous Bivens cases” because he did not allege unreasonable 

search and seizure, sex discrimination, or deliberate indifference to medical needs. 

R. 128; see also Ziglar, 582 U.S. at 139. Bacon does not purport to challenge the 

conclusion that this is a new Bivens context, and other circuits have held as much in 

similar circumstances. See Xi v. Haugen, 68 F.4th 824, 834 (3d Cir. 2023) (finding 

new context where plaintiff “allege[d] that federal agents made false statements and 

material omissions of exculpatory evidence that led the [g]overnment to investigate, 

arrest, and prosecute him”); Cantú v. Moody, 933 F.3d 414, 423 (5th Cir. 2019) 

(finding new context where plaintiff alleged that officers “falsified affidavits”). 

Given Bacon’s waiver of this issue and this persuasive circuit authority, we agree 

with the district court that this is a new Bivens context. 

 As to special factors counseling hesitation before expanding Bivens to this new 

context, we recently observed that “expanding Bivens is not just ‘a disfavored 

judicial activity,’ it is an action that is impermissible in virtually all circumstances.” 

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Silva v. United States, 45 F.4th 1134, 1140 (10th Cir. 2022) (quoting Ziglar, 582 U.S. 

at 135). A court will not expand Bivens if “Congress is better positioned to create 

remedies in the” new context at hand or if “the [g]overnment already has provided 

alternative remedies that protect plaintiffs.” Id. at 1141. Here, the district court found 

that both special factors applied, reasoning that Congress was better equipped to 

create remedies in this context because of the “potential interference with the 

important work of supervising officers” and that the FTCA provided an alternative 

remedy. 

On appeal, Bacon purports to challenge only the latter ruling. But even if we 

were to agree with him that the FTCA is not an alternative remedy counseling against 

extending Bivens, that would not be reason enough to reverse. The district court’s 

concern about Congress being better suited to create a remedy to avoid interfering 

with the work of probation officers is sufficient, standing alone, to counsel against 

expanding Bivens. See Silva, 45 F.4th at 1141; Carvajal v. United States, No. 20-CV567, 2021 WL 2814883, at *4–5 (N.D. Tex. May 11, 2021) (unpublished) 

(“Supervision-based Bivens claims like this . . . could possibly interfere with the 

difficult responsibilities of probation officers.”), report and recommendation 

adopted, 2021 WL 2808966 (N.D. Tex. July 6, 2021) (unpublished). And Bacon 

waived any argument to the contrary by not making one in his brief. So we conclude 

that this case, like “virtually all” new Bivens contexts, is not appropriate for 

extending the Bivens remedy. Silva, 45 F.4th at 1140. We accordingly affirm the 

district court’s dismissal order. 

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As a final matter, we grant Bacon’s motion to proceed IFP on appeal and deny 

his motion asking for an order directing his prison to provide him with certain legal 

documents. 

Conclusion

We affirm the district court’s order dismissing Bacon’s complaint with 

prejudice because he failed to state a claim under Bivens or § 1983, grant his IFP 

motion, and deny his motion for documents. 

Entered for the Court 

Nancy L. Moritz 

Circuit Judge 

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