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Mays v. Yarbrough

U.S. District Court, District of Minnesota

Mays v. Yarbrough

Trial Court Opinion

                UNITED STATES DISTRICT COURT                             
                    DISTRICT OF MINNESOTA                                


Otis Mays,                             Civil No. 22-2403 (DWF/ECW)       

               Plaintiff,                                                

v.                                               MEMORANDUM              
                                            OPINION AND ORDER            
Travis Yarbrough, Richard Waller, and                                    
John Doe, in their individual and official                               
capacities,                                                              

               Defendants.                                               


                        INTRODUCTION                                     
    This matter is before the Court on Defendants Travis Yarbrough, Richard Waller, 
and John Doe’s motion to dismiss.  (Doc. No. 51.)  Pro se Plaintiff Otis Mays opposes 
the motion.  (Doc. No. 72.)  For the reasons set forth below, the Court grants Defendants’ 
motion.                                                                   
                         BACKGROUND                                      
    Mays’s allegations against Defendants stem from his arrest in 2019.  A friend 
drove Mays to the Hennepin County Courthouse.  (Doc. No. 1 (“Compl.”) at 5.)  When 
Mays arrived, FBI special agents Yarbrough and Waller asked him if he was Otis Mays.  
(Id.)  Mays stated that he was, and the two agents placed Mays under arrest pursuant to 
two active arrest warrants.1  The agents knocked Mays to the ground and put his arms 

1    See United States v. Mays, No. 19-cr-76, Doc. No. 3 (filed Mar. 12, 2019); United 
States v. Mays, No. 19-cr-75, Doc. No. 3 (filed Mar. 12, 2019).           
behind his back.  (Id.)  Mays repeatedly told Yarbrough and Waller that his shoulder was 
injured and that he could not put his arm behind his back.  (Id.)  They ignored Mays’s 
pleas and continued to place his arms behind his back.  (Id. at 5-6.)  Mays asserts that 

when he asked Waller to let go of his right arm, Waller instead applied more pressure.  
(Id. at 6.)                                                               
    Yarbrough and Waller searched Mays and then placed him in handcuffs.  (Id.)  
The agents then drove Mays to the FBI field office.  (Id. at 6-7.)  On the way, Mays was 
read his Miranda rights twice.  (Id. at 7.)  He was then brought to an interrogation room.  

(Id.)  Mays asserts that Waller told him about a law called the “1001 law,” which Mays 
interpreted to mean that if he exercised his right to remain silent, then he “could be 
charged.”  (Id.)                                                          
    Mays was also asked to unlock his phone.  (Id.)  He felt like he had to, so he did.  
(Id.)  He tried to lock it before Yarbrough or Waller could take the phone, but “it was 

snatched out of [his] hand.”  (Id.)  Mays told the agents that they could not search his 
phone, but Waller began “to do just that.”  (Id.)  Waller then left the room with Mays’s 
phone.  (Id.)                                                             
    Lastly, Mays alleges that Waller “intentionally applied pressure to [his] damage[d] 
shoulder” several times during the interview.  (Id. at 8.)  He asserts that Yarbrough and 

an unknown agent, John Doe, were present when this happened but failed to intervene.  
(Id.)                                                                     
    Mays brings this action against Yarbrough, Waller, and John Doe, alleging 
violations of the First, Fourth, Fifth, Eighth, and Fourteen Amendments.  He alleges that 
Waller used excessive force during the interrogation and asserts that Yarbrough and Doe 
failed to intervene.  He similarly alleges that Waller and Yarbrough used excessive force 
when they arrested him.  He also alleges that Yarbrough and Waller violated his right to 

remain silent and illegally searched his cell phone.                      
    Defendants now move to dismiss these claims.  Mays opposes the motion.  
                          DISCUSSION                                     
I.   Legal Standard                                                       
    In deciding a motion to dismiss pursuant to Rule 12(b)(6), a court assumes all 

facts in the complaint to be true and construes all reasonable inferences from those facts 
in the light most favorable to the complainant.  Morton v. Becker,
793 F.2d 185, 187
 (8th 
Cir. 1986).  A court may consider the complaint, matters of public record, orders, 
materials embraced by the complaint, and exhibits attached to the complaint in deciding a 
motion to dismiss under Rule 12(b)(6).  Porous Media Corp. v. Pall Corp.,
186 F.3d 1077, 1079
 (8th Cir. 1999).  To survive a motion to dismiss, a complaint must contain 
“enough facts to state a claim to relief that is plausible on its face.”  Bell Atl. Corp. v. 
Twombly,
550 U.S. 544, 570
 (2007).  Although a complaint need not contain “detailed 
factual allegations,” it must contain facts with enough specificity “to raise a right to relief 
above the speculative level.”
Id. at 555
.                                

    In addition, the Court notes that pro se complaints are held “to less stringent 
standards than formal pleadings drafted by lawyers.”  Haines v. Kerner,
404 U.S. 519, 520
 (1972) (per curiam).  Even so, a pro se complaint must allege facts, and not just bare, 
unsupported, legal conclusions.  Martin v. Sargent,
780 F.2d 1334, 1337
 (8th Cir. 1985). 
II.  Official-Capacity Claims                                             
    Mays brings these claims against Defendants in their individual and official 
capacities.  “[I]t is well-settled that Bivens actions may be brought against individual 

defendants only in their personal, rather than official, capacities.”  Hussein v. Sessions, 
No. 16-cv-780,
2017 WL 1954767
, at *3 (D. Minn. May 10, 2017); see also Laswell v. 
Brown,
683 F.2d 261, 268
 (8th Cir. 1982) (“Bivens and its progeny do not waive 
sovereign immunity for actions against the United States.”).  Mays’s claims against 
Defendants in their official capacities are therefore dismissed with prejudice. 

III.  Individual-Capacity Claims                                          
    Mays brings various claims against Defendants in their individual capacities under 
Bivens.  In Bivens, the Supreme Court “held that it had authority to create a cause of 
action under the Fourth Amendment against federal agents who allegedly manacled the 
plaintiff and threatened his family while arresting him for narcotics violations.”  Egbert v. 

Boule,
596 U.S. 482, 490
 (2022) (internal quotations and citation omitted).  In the past 
fifty years, the Court has implied only two additional causes of action:  “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
.  The Court has emphasized that “recognizing a cause of action under Bivens is 

a disfavored judicial activity.”
Id. at 491
 (internal quotations and citation omitted); see 
also Ahmed v. Weyker,
984 F.3d 564, 567
 (8th Cir. 2020) (concluding that there is a 
“presumption against creating new Bivens actions”).                       
    Courts have utilized a two-step inquiry when determining whether an implied 
cause of action is available to a plaintiff.  First, the Court must determine whether the 
“case presents a new Bivens context.”  Egbert,
596 U.S. at 492
 (internal quotations and 

citation omitted).  In other words, the Court must decide whether the case is 
“meaningful[ly] different from the three cases in which the Court has implied a damages 
action.”
Id.
 (internal quotations and citation omitted).                 
    “Second, if a claim arises in a new context, a Bivens remedy is unavailable if there 
are special factors indicating that the Judiciary is at least arguably less equipped than 

Congress to weigh the costs and benefits of allowing a damages action to proceed.”
Id.
 
(internal quotations and citation omitted).  The Court has not provided an exhaustive list 
of special factors but has instructed “[i]f there is even a single reason to pause before 
applying Bivens in a new context, a court may not recognize a Bivens remedy.”
Id. at 492-93
 (internal quotations and citation omitted).                     

    A.   New Context                                                     
    In their motion to dismiss, Defendants argue that each of Mays’s claims arise in a 
new context.  The Court’s “understanding of a ‘new context’ is broad.”  Hernandez v. 
Mesa,
140 S. Ct. 735, 743
 (2020).  “Even ‘small’ differences can be ‘meaningful.’”  
Ahmed,
984 F.3d at 568
 (citation omitted).                                

    Mays alleges violations of the First, Fourth, Fifth, Eighth, and Fourteenth 
Amendments.  Mays’s claims under the First and Fourteenth Amendment clearly arise in 
new contexts.  In Egbert, the Court noted that it has “never held that Bivens extends to 
First Amendment claims.”  Egbert,
596 U.S. at 498
.  Additionally, Bivens has not been 
extended to Fourteenth Amendment claims, because “by its very terms, [the Fourteenth 
Amendment] applies only to state actors, not to federal officials.”  Clutts v. Lester, 
No. 20-cv-80,
2023 WL 3901489
, at *4 (N.D. Iowa June 8, 2023).            

    “A claim may arise in a new context even if it is based on the same constitutional 
provision as a claim in a case in which a damages remedy was previously recognized.”  
Hernandez,
140 S. Ct. at 743
.  Mays brings a claim under the Fifth Amendment, arguing 
that Defendants violated his right to remain silent.  The Supreme Court has recognized a 
Bivens cause of action under the Fifth Amendment for sex-discrimination claims but not 

for Miranda violations. 2  Additionally, Mays brings claims under the Eighth 
Amendment.  Because these claims relate to Mays’s treatment as a pretrial detainee, his 
excessive-force claim is analyzed under the Fifth Amendment Due Process Clause, not 
the Eighth Amendment.  See Clutts,
2023 WL 3901489
, at *5 n.2 (“Courts analyze 
excessive force claims of pretrial detainees under the due process clause.”).  These claims 

are not related to sex discrimination or inadequate medical care and are thus unlike the 
Fifth and Eighth Amendment Bivens causes of action.  These claims arise in new 
contexts.                                                                 



2    In addition, Mays’s Fifth Amendment claim regarding a violation of his Miranda 
rights is without merit, as Mays does not allege that his statements were compelled or 
used in a criminal case.  See Hannon v. Sanner,
441 F.3d 635, 637
 (8th Cir. 2006) 
(“Statements obtained in violation of the Miranda rule are not ‘compelled.’”).  The Court 
cannot create a cause of action under the Fifth Amendment related to this Miranda 
violation because Mays has not implicated the Fifth Amendment.            
    Mays’s remaining claims relate to a search and seizure under the Fourth 
Amendment.  Mays asserts that Defendants used excessive force during his arrest and 
interrogation, failed to intervene, and conducted a warrantless search of his phone.  In 

Bivens, the Supreme Court recognized a cause of action under the Fourth Amendment 
based on claims that “arose out of a warrantless search and an illegal arrest.”  Ahmed,
984 F.3d at 568
.  “Specifically, federal law-enforcement officers had threatened to arrest 
[Bivens’s] entire family as they shackled him; searched [his] apartment from stem to 
stern; and after booking and interrogating him, subjected [him] to a visual strip search.”
Id.
 (internal quotations and citation omitted).  In contrast, Mays was arrested pursuant to 
two active arrest warrants.  He was arrested in public, at the Hennepin County 
Courthouse, not at his home.  Defendants did not search his home or threaten his family.  
Rather, Defendants allegedly searched Mays’s phone without a warrant.  The Court 
concludes that this case meaningfully differs from Bivens, as the case involves different 

actions and different injuries.                                           
    Overall, each of Mays’s claims would extend Bivens to a new context. 
    B.   Factors                                                         
    The Court next must determine whether there are any “special factors indicating 
that the Judiciary is at least arguably less equipped than Congress to weigh the costs and 

benefits of allowing a damages action to proceed.”  Egbert,
596 U.S. at 492
 (internal 
quotations and citation omitted).                                         
    The Supreme Court recently declined to recognize a new Bivens action for First 
Amendment retaliation claims, because extending Bivens to these claims would increase 
social costs, including “the risk that fear of personal monetary liability and harassing 
litigation will unduly inhibit officials in the discharge of their duties.”
Id. at 499
 (internal 
quotations and citation omitted).  The Court concludes that the same reasoning cautions 

against extending Bivens to Mays’s First Amendment claim, as Congress is better suited 
to weigh the costs and benefits of imposing damages for First Amendment violations.   
    Additionally, “a court may not fashion a Bivens remedy if Congress already has 
provided, or has authorized the Executive to provide, an alternative remedial structure.”
Id. at 493
 (internal quotations and citation omitted).  The alternative remedial structure 

need not afford the party “rights to participation or appeal.”
Id. at 498
.  Rather, “Bivens 
is concerned solely with deterring the unconstitutional acts of individual officers—i.e., 
the focus is whether the Government has put in place safeguards to preven[t] 
constitutional violations from recurring.”
Id.
 (internal quotations and citation omitted). 
    The Inspector General Act authorizes inspectors general to “investigate allegations 

of criminal wrongdoing or administrative misconduct by an employee of the Department 
of Justice,” including FBI agents, and may “refer such allegations to the Office of 
Professional Responsibility or the internal affairs office of the appropriate component of 
the Department of Justice.”
5 U.S.C. § 413
(b)(2).  Any person may report wrongdoing or 
misconduct by an employee of the Department of Justice, and individuals may submit 

complaints via mail, phone, fax, or online.  See U.S. Department of Justice Office of the 
Inspector General, Violation of Civil Rights or Civil Liberties Complaints, 
https://oig.justice.gov/hotline/civil_rights_complaint (last visited Jan. 8, 2024).  Mays 
also could have submitted a complaint with an FBI field office.  “So 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, 597 U.S. at 498.                                 

    “[R]ecognizing a cause of action under Bivens is a disfavored judicial activity” id. 
at 491, and the Court concludes that the above factors caution against extending Bivens to 
Mays’s causes of action.  The Court therefore grants Defendants’ motion to dismiss. 
                         CONCLUSION                                      
    For the reasons outlined above, Mays’s claims against Defendants, in their 

individual and official capacities, are dismissed with prejudice.

ORDER

    Based upon the foregoing, and the files, records, and proceedings herein, IT IS 
HEREBY ORDERED that:                                                      
    1.   Defendants’ motion to dismiss (Doc. No. [51]) is GRANTED.       

    2.   Plaintiff’s claims against Defendants are DISMISSED WITH        
PREJUDICE.                                                                
    LET JUDGMENT BE ENTERED ACCORDINGLY.                                 

Dated:  January 18, 2024      s/Donovan W. Frank                          
                             DONOVAN W. FRANK                            
                             United States District Judge

Trial Court Opinion

                UNITED STATES DISTRICT COURT                             
                    DISTRICT OF MINNESOTA                                


Otis Mays,                             Civil No. 22-2403 (DWF/ECW)       

               Plaintiff,                                                

v.                                               MEMORANDUM              
                                            OPINION AND ORDER            
Travis Yarbrough, Richard Waller, and                                    
John Doe, in their individual and official                               
capacities,                                                              

               Defendants.                                               


                        INTRODUCTION                                     
    This matter is before the Court on Defendants Travis Yarbrough, Richard Waller, 
and John Doe’s motion to dismiss.  (Doc. No. 51.)  Pro se Plaintiff Otis Mays opposes 
the motion.  (Doc. No. 72.)  For the reasons set forth below, the Court grants Defendants’ 
motion.                                                                   
                         BACKGROUND                                      
    Mays’s allegations against Defendants stem from his arrest in 2019.  A friend 
drove Mays to the Hennepin County Courthouse.  (Doc. No. 1 (“Compl.”) at 5.)  When 
Mays arrived, FBI special agents Yarbrough and Waller asked him if he was Otis Mays.  
(Id.)  Mays stated that he was, and the two agents placed Mays under arrest pursuant to 
two active arrest warrants.1  The agents knocked Mays to the ground and put his arms 

1    See United States v. Mays, No. 19-cr-76, Doc. No. 3 (filed Mar. 12, 2019); United 
States v. Mays, No. 19-cr-75, Doc. No. 3 (filed Mar. 12, 2019).           
behind his back.  (Id.)  Mays repeatedly told Yarbrough and Waller that his shoulder was 
injured and that he could not put his arm behind his back.  (Id.)  They ignored Mays’s 
pleas and continued to place his arms behind his back.  (Id. at 5-6.)  Mays asserts that 

when he asked Waller to let go of his right arm, Waller instead applied more pressure.  
(Id. at 6.)                                                               
    Yarbrough and Waller searched Mays and then placed him in handcuffs.  (Id.)  
The agents then drove Mays to the FBI field office.  (Id. at 6-7.)  On the way, Mays was 
read his Miranda rights twice.  (Id. at 7.)  He was then brought to an interrogation room.  

(Id.)  Mays asserts that Waller told him about a law called the “1001 law,” which Mays 
interpreted to mean that if he exercised his right to remain silent, then he “could be 
charged.”  (Id.)                                                          
    Mays was also asked to unlock his phone.  (Id.)  He felt like he had to, so he did.  
(Id.)  He tried to lock it before Yarbrough or Waller could take the phone, but “it was 

snatched out of [his] hand.”  (Id.)  Mays told the agents that they could not search his 
phone, but Waller began “to do just that.”  (Id.)  Waller then left the room with Mays’s 
phone.  (Id.)                                                             
    Lastly, Mays alleges that Waller “intentionally applied pressure to [his] damage[d] 
shoulder” several times during the interview.  (Id. at 8.)  He asserts that Yarbrough and 

an unknown agent, John Doe, were present when this happened but failed to intervene.  
(Id.)                                                                     
    Mays brings this action against Yarbrough, Waller, and John Doe, alleging 
violations of the First, Fourth, Fifth, Eighth, and Fourteen Amendments.  He alleges that 
Waller used excessive force during the interrogation and asserts that Yarbrough and Doe 
failed to intervene.  He similarly alleges that Waller and Yarbrough used excessive force 
when they arrested him.  He also alleges that Yarbrough and Waller violated his right to 

remain silent and illegally searched his cell phone.                      
    Defendants now move to dismiss these claims.  Mays opposes the motion.  
                          DISCUSSION                                     
I.   Legal Standard                                                       
    In deciding a motion to dismiss pursuant to Rule 12(b)(6), a court assumes all 

facts in the complaint to be true and construes all reasonable inferences from those facts 
in the light most favorable to the complainant.  Morton v. Becker,
793 F.2d 185, 187
 (8th 
Cir. 1986).  A court may consider the complaint, matters of public record, orders, 
materials embraced by the complaint, and exhibits attached to the complaint in deciding a 
motion to dismiss under Rule 12(b)(6).  Porous Media Corp. v. Pall Corp.,
186 F.3d 1077, 1079
 (8th Cir. 1999).  To survive a motion to dismiss, a complaint must contain 
“enough facts to state a claim to relief that is plausible on its face.”  Bell Atl. Corp. v. 
Twombly,
550 U.S. 544, 570
 (2007).  Although a complaint need not contain “detailed 
factual allegations,” it must contain facts with enough specificity “to raise a right to relief 
above the speculative level.”
Id. at 555
.                                

    In addition, the Court notes that pro se complaints are held “to less stringent 
standards than formal pleadings drafted by lawyers.”  Haines v. Kerner,
404 U.S. 519, 520
 (1972) (per curiam).  Even so, a pro se complaint must allege facts, and not just bare, 
unsupported, legal conclusions.  Martin v. Sargent,
780 F.2d 1334, 1337
 (8th Cir. 1985). 
II.  Official-Capacity Claims                                             
    Mays brings these claims against Defendants in their individual and official 
capacities.  “[I]t is well-settled that Bivens actions may be brought against individual 

defendants only in their personal, rather than official, capacities.”  Hussein v. Sessions, 
No. 16-cv-780,
2017 WL 1954767
, at *3 (D. Minn. May 10, 2017); see also Laswell v. 
Brown,
683 F.2d 261, 268
 (8th Cir. 1982) (“Bivens and its progeny do not waive 
sovereign immunity for actions against the United States.”).  Mays’s claims against 
Defendants in their official capacities are therefore dismissed with prejudice. 

III.  Individual-Capacity Claims                                          
    Mays brings various claims against Defendants in their individual capacities under 
Bivens.  In Bivens, the Supreme Court “held that it had authority to create a cause of 
action under the Fourth Amendment against federal agents who allegedly manacled the 
plaintiff and threatened his family while arresting him for narcotics violations.”  Egbert v. 

Boule,
596 U.S. 482, 490
 (2022) (internal quotations and citation omitted).  In the past 
fifty years, the Court has implied only two additional causes of action:  “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
.  The Court has emphasized that “recognizing a cause of action under Bivens is 

a disfavored judicial activity.”
Id. at 491
 (internal quotations and citation omitted); see 
also Ahmed v. Weyker,
984 F.3d 564, 567
 (8th Cir. 2020) (concluding that there is a 
“presumption against creating new Bivens actions”).                       
    Courts have utilized a two-step inquiry when determining whether an implied 
cause of action is available to a plaintiff.  First, the Court must determine whether the 
“case presents a new Bivens context.”  Egbert,
596 U.S. at 492
 (internal quotations and 

citation omitted).  In other words, the Court must decide whether the case is 
“meaningful[ly] different from the three cases in which the Court has implied a damages 
action.”
Id.
 (internal quotations and citation omitted).                 
    “Second, if a claim arises in a new context, a Bivens remedy is unavailable if there 
are special factors indicating that the Judiciary is at least arguably less equipped than 

Congress to weigh the costs and benefits of allowing a damages action to proceed.”
Id.
 
(internal quotations and citation omitted).  The Court has not provided an exhaustive list 
of special factors but has instructed “[i]f there is even a single reason to pause before 
applying Bivens in a new context, a court may not recognize a Bivens remedy.”
Id. at 492-93
 (internal quotations and citation omitted).                     

    A.   New Context                                                     
    In their motion to dismiss, Defendants argue that each of Mays’s claims arise in a 
new context.  The Court’s “understanding of a ‘new context’ is broad.”  Hernandez v. 
Mesa,
140 S. Ct. 735, 743
 (2020).  “Even ‘small’ differences can be ‘meaningful.’”  
Ahmed,
984 F.3d at 568
 (citation omitted).                                

    Mays alleges violations of the First, Fourth, Fifth, Eighth, and Fourteenth 
Amendments.  Mays’s claims under the First and Fourteenth Amendment clearly arise in 
new contexts.  In Egbert, the Court noted that it has “never held that Bivens extends to 
First Amendment claims.”  Egbert,
596 U.S. at 498
.  Additionally, Bivens has not been 
extended to Fourteenth Amendment claims, because “by its very terms, [the Fourteenth 
Amendment] applies only to state actors, not to federal officials.”  Clutts v. Lester, 
No. 20-cv-80,
2023 WL 3901489
, at *4 (N.D. Iowa June 8, 2023).            

    “A claim may arise in a new context even if it is based on the same constitutional 
provision as a claim in a case in which a damages remedy was previously recognized.”  
Hernandez,
140 S. Ct. at 743
.  Mays brings a claim under the Fifth Amendment, arguing 
that Defendants violated his right to remain silent.  The Supreme Court has recognized a 
Bivens cause of action under the Fifth Amendment for sex-discrimination claims but not 

for Miranda violations. 2  Additionally, Mays brings claims under the Eighth 
Amendment.  Because these claims relate to Mays’s treatment as a pretrial detainee, his 
excessive-force claim is analyzed under the Fifth Amendment Due Process Clause, not 
the Eighth Amendment.  See Clutts,
2023 WL 3901489
, at *5 n.2 (“Courts analyze 
excessive force claims of pretrial detainees under the due process clause.”).  These claims 

are not related to sex discrimination or inadequate medical care and are thus unlike the 
Fifth and Eighth Amendment Bivens causes of action.  These claims arise in new 
contexts.                                                                 



2    In addition, Mays’s Fifth Amendment claim regarding a violation of his Miranda 
rights is without merit, as Mays does not allege that his statements were compelled or 
used in a criminal case.  See Hannon v. Sanner,
441 F.3d 635, 637
 (8th Cir. 2006) 
(“Statements obtained in violation of the Miranda rule are not ‘compelled.’”).  The Court 
cannot create a cause of action under the Fifth Amendment related to this Miranda 
violation because Mays has not implicated the Fifth Amendment.            
    Mays’s remaining claims relate to a search and seizure under the Fourth 
Amendment.  Mays asserts that Defendants used excessive force during his arrest and 
interrogation, failed to intervene, and conducted a warrantless search of his phone.  In 

Bivens, the Supreme Court recognized a cause of action under the Fourth Amendment 
based on claims that “arose out of a warrantless search and an illegal arrest.”  Ahmed,
984 F.3d at 568
.  “Specifically, federal law-enforcement officers had threatened to arrest 
[Bivens’s] entire family as they shackled him; searched [his] apartment from stem to 
stern; and after booking and interrogating him, subjected [him] to a visual strip search.”
Id.
 (internal quotations and citation omitted).  In contrast, Mays was arrested pursuant to 
two active arrest warrants.  He was arrested in public, at the Hennepin County 
Courthouse, not at his home.  Defendants did not search his home or threaten his family.  
Rather, Defendants allegedly searched Mays’s phone without a warrant.  The Court 
concludes that this case meaningfully differs from Bivens, as the case involves different 

actions and different injuries.                                           
    Overall, each of Mays’s claims would extend Bivens to a new context. 
    B.   Factors                                                         
    The Court next must determine whether there are any “special factors indicating 
that the Judiciary is at least arguably less equipped than Congress to weigh the costs and 

benefits of allowing a damages action to proceed.”  Egbert,
596 U.S. at 492
 (internal 
quotations and citation omitted).                                         
    The Supreme Court recently declined to recognize a new Bivens action for First 
Amendment retaliation claims, because extending Bivens to these claims would increase 
social costs, including “the risk that fear of personal monetary liability and harassing 
litigation will unduly inhibit officials in the discharge of their duties.”
Id. at 499
 (internal 
quotations and citation omitted).  The Court concludes that the same reasoning cautions 

against extending Bivens to Mays’s First Amendment claim, as Congress is better suited 
to weigh the costs and benefits of imposing damages for First Amendment violations.   
    Additionally, “a court may not fashion a Bivens remedy if Congress already has 
provided, or has authorized the Executive to provide, an alternative remedial structure.”
Id. at 493
 (internal quotations and citation omitted).  The alternative remedial structure 

need not afford the party “rights to participation or appeal.”
Id. at 498
.  Rather, “Bivens 
is concerned solely with deterring the unconstitutional acts of individual officers—i.e., 
the focus is whether the Government has put in place safeguards to preven[t] 
constitutional violations from recurring.”
Id.
 (internal quotations and citation omitted). 
    The Inspector General Act authorizes inspectors general to “investigate allegations 

of criminal wrongdoing or administrative misconduct by an employee of the Department 
of Justice,” including FBI agents, and may “refer such allegations to the Office of 
Professional Responsibility or the internal affairs office of the appropriate component of 
the Department of Justice.”
5 U.S.C. § 413
(b)(2).  Any person may report wrongdoing or 
misconduct by an employee of the Department of Justice, and individuals may submit 

complaints via mail, phone, fax, or online.  See U.S. Department of Justice Office of the 
Inspector General, Violation of Civil Rights or Civil Liberties Complaints, 
https://oig.justice.gov/hotline/civil_rights_complaint (last visited Jan. 8, 2024).  Mays 
also could have submitted a complaint with an FBI field office.  “So 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, 597 U.S. at 498.                                 

    “[R]ecognizing a cause of action under Bivens is a disfavored judicial activity” id. 
at 491, and the Court concludes that the above factors caution against extending Bivens to 
Mays’s causes of action.  The Court therefore grants Defendants’ motion to dismiss. 
                         CONCLUSION                                      
    For the reasons outlined above, Mays’s claims against Defendants, in their 

individual and official capacities, are dismissed with prejudice.

ORDER

    Based upon the foregoing, and the files, records, and proceedings herein, IT IS 
HEREBY ORDERED that:                                                      
    1.   Defendants’ motion to dismiss (Doc. No. [51]) is GRANTED.       

    2.   Plaintiff’s claims against Defendants are DISMISSED WITH        
PREJUDICE.                                                                
    LET JUDGMENT BE ENTERED ACCORDINGLY.                                 

Dated:  January 18, 2024      s/Donovan W. Frank                          
                             DONOVAN W. FRANK                            
                             United States District Judge

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