Daniel Cantu v. James Moody
Opinion
*417 Daniel Enrique Cantú is a member of the Texas Mexican Mafia. He says the U.S. Constitution and federal civil rights laws afford him money damages against state and federal law enforcement officers for claims arising from a drug bust. We disagree.
I.
A.
This case arises from a transnational drug-trafficking investigation. In 2010, the federal government began investigating the Texas Mexican Mafia. As part of its investigation, the government identified Jesus Rodriguez Barrientes as the gang's leader in the Rio Grande Valley. Working with state and local law enforcement, the FBI planned a sting operation as part of Barrientes's regular heroin purchases from Mexican drug smugglers.
FBI agents convinced Juan Pablo Rodriguez, a member of the Texas Mexican Mafia, to work as an informant. When Barrientes's heroin shipment arrived, Rodriguez would meet the drug smugglers at the border and then drive everyone to a drop-off location. There Rodriguez would deliver the heroin to whomever Barrientes designated as his authorized recipient.
On the morning of August 10, 2011, things went mostly according to plan. Rodriguez, accompanied by an undercover police officer, drove to the Rio Grande where he met the drug smugglers. Then, at 7:30 a.m., Rodriguez called Cantú and asked him to come to an H-E-B parking lot so they could talk in person. According to Cantú, Rodriguez did not say what he wanted to talk about.
When Cantú arrived, he parked to the left of Rodriguez's car and rolled down his passenger-side window. Rodriguez then got out of his car, went to the trunk, took out a cooler, and placed it through Cantú's open window and onto the passenger seat. "I need you to do me a favor," Rodriguez allegedly said. Cantú says he had time to ask only one question-"What are you doing?"-before forty-five law enforcement officers descended on his vehicle. One of the officers, FBI Agent David de los Santos, pulled Cantú from his car, searched him, and placed him under arrest. The cooler contained nearly two kilograms of heroin.
Although Cantú says he remained in his car the whole time and never touched the cooler, two federal agents swore otherwise in affidavits. FBI Agent James Moody said Cantú exited his vehicle and personally took the cooler from Rodriguez's trunk. FBI Agent Erin LaBuz said Rodriguez handed the cooler to Cantú, who personally placed it in his passenger seat.
A federal grand jury indicted Cantú, Barrientes, his wife, and two smugglers for possession of heroin with intent to distribute and conspiracy. Barrientes, his wife, and one of the smugglers pleaded guilty and were sent to federal prison. Cantú
*418 elected to stand trial. On October 31, 2013, a federal jury acquitted him. By that time, he had spent more than two years in jail.
B.
Cantú then sued a slew of defendants under
Bivens
, the Federal Tort Claims Act, § 1983, § 1985, and state law. In the complaint, he alleged twenty-one claims under the Fourth Amendment, Fifth Amendment, Fourteenth Amendment, and various tort theories-like malicious prosecution, false arrest, false imprisonment, assault, civil conspiracy, conversion, and negligence. And he offered his theory of how he went from his bed to a grocery store to a jail cell: Forty-five officers jeopardized a sophisticated, multi-year, multi-jurisdictional sting operation aimed at a transnational gang to frame an otherwise-innocent member of the Texas Mexican Mafia in an effort "to improve each of their professional arrest and conviction rate records against drug traffickers." However far-fetched that might seem, we take Cantú's well-pleaded allegations as true.
See
Ashcroft v. Iqbal
,
Cantú alleges he was never the intended recipient of the heroin. He says Rodriguez, while driving to the H-E-B, tried and failed to get in touch with the actual recipient. So he called Cantú instead. The gravamen of Cantú's complaint is that officers who were privy to Rodriguez's audible-and Cantú's professed ignorance about why he was being called to the grocery store-knew Cantú was not the guy who was supposed to show up that morning. Yet they permitted him to be arrested and then doubled down, fabricating facts about Cantú's behavior to create the impression he was the guy.
After several hearings, the district court dismissed all of Cantú's claims against all fifteen federal, state, and county defendants. It also granted Cantú's motion to voluntarily dismiss (with prejudice) his claims against the only remaining defendant-the private company that operated the prison where he was housed before trial. The court further denied Cantú's request to file a Fourth Amended Complaint. It later filed four separate dismissal orders. Cantú appealed the orders dismissing the federal, state, and county defendants. 1
II.
In his briefs before our Court, Cantú pursues only a subset of his claims against only a subset of the defendants-FBI Agent James Moody, FBI Agent Erin LaBuz, FBI Agent David de los Santos, and
*419
Texas DPS Officer Alfredo Barrera. He has forfeited everything else.
See
United States v. Vasquez
,
We review the dismissal of Cantú's claims
de novo
.
Causey v. Sewell Cadillac-Chevrolet, Inc.
,
A.
Cantú alleges the federal defendants-Moody, LaBuz, and de los Santos-conspired to violate his civil rights under
Our precedent holds § 1985(3) does not apply to federal officers. In
Mack v. Alexander
,
Even if we were inclined to ignore
Mack
, Cantú's claim would fail for an independent reason. The relevant text of § 1985(3) criminalizes only conspiracies that involve depriving someone of "equal protection of the laws" or "equal privileges and immunities under the laws."
Cantú says "he belongs to a class of individuals who have felony convictions and/or were previously incarcerated." But the Supreme "Court ... has never held that nonracial animus is sufficient."
Newberry v. E. Tex. State Univ.
,
Even assuming § 1985(3) covers Cantú's proffered class-convicted felons-Cantú's claims still can't survive a Rule 12(b)(6) motion. First, Cantú can't cross from "the factually neutral [to] the
*420
factually suggestive" because he doesn't link his conspiracy allegations to his status.
Bell Atl. Corp. v. Twombly
,
There's an even easier answer for Agent de los Santos. Cantú singles him out as the officer who removed Cantú from his vehicle, arrested and searched him, and then drove him to the FBI building. Cantú makes no allegation-not even a conclusory one-that de los Santos formed any kind of agreement with Moody, LaBuz, or anyone else. He doesn't even allege that de los Santos was privy to Rodriguez's last-minute change of plans to call Cantú. By Cantú's own account, de los Santos was simply the tip of the spear in the final phase of the sting operation. The district court was correct to dismiss the § 1985(3) claims.
B.
Cantú presses several § 1983 claims against Texas DPS Officer Barrera. First, he argues Barrera conspired to violate Cantú's civil rights. He alleges Barrera helped federal officers conduct the larger investigation and identified someone other than Cantú as "the person to receive the heroin" on the morning of the sting operation. As with his § 1985(3) claim against de los Santos, however, Cantú nowhere alleges Barrera formed any kind of agreement with anyone. Nor does he say Barrera learned about what transpired on the phone call between Rodriguez and Cantú.
Next, Cantú argues Barrera maliciously prosecuted him in violation of the Fourth Amendment and fabricated evidence against him in violation of the Fourth and Fourteenth Amendments. 2
*421
Both claims against Barrera fail for the same reason the conspiracy claim does. Cantú claims Barrera "[m]aliciously initiated a criminal case against [him] ... without probable cause." He also claims Barrera intentionally or recklessly falsified facts "in order to fabricate evidence and/or establish probable cause." These are all conclusions without any factual allegations to support them.
See
Iqbal
,
We need not decide whether Cantú can bring a separately cognizable Fourteenth Amendment claim for fabrication of evidence against Barrera after
Manuel v. City of Joliet
, --- U.S. ----,
C.
Cantú also brings a would-be cause of action against Moody and LaBuz under
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics
,
1.
As the Supreme Court recently reminded us,
Bivens
is the byproduct of an "
ancien regime
."
Ziglar v. Abbasi
, --- U.S. ----,
Since 1980, however, "the Court has refused" every Bivens claim presented to it. Abbasi , 137 S. Ct. at 1857 ; see also ibid. (collecting cases). The Court has emphasized that Bivens , Davis , and Carlson remain good law. See id. at 1856-57. At the same time, "it is possible that the analysis in the Court's three Bivens cases might have been different if they were decided today." Id. at 1856. And it has admonished us to exercise "caution" in the "disfavored judicial activity" of extending Bivens to *422 any new set of facts. Id. at 1857 (quotations omitted).
So, before allowing Cantú to sue under Bivens , we must ask two questions. First, do Cantú's claims fall into one of the three existing Bivens actions? Second, if not, should we recognize a new Bivens action here? The answer to both questions is no.
Cantú purports to address the first question. And he thinks he's home free because his malicious-prosecution-type-claim alleges a violation of his Fourth Amendment right to be free from unlawful seizures-the same right recognized in
Bivens
. That's wrong. 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."
See
FDIC v. Meyer
,
Here's an example. No one thinks
Davis
-which permitted a congressional employee to sue for unlawful termination in violation of the Due Process Clause-means the entirety of the Fifth Amendment's Due Process Clause is fair game in a
Bivens
action. The Supreme Court rejected a claim under the same clause of the same amendment nine years later.
See
Schweiker v. Chilicky
,
What if a plaintiff asserts a violation of the same clause of the same amendment
in the same way
? That still doesn't cut it. In
Chappell v. Wallace
,
The Supreme Court recently addressed this threshold question. And it rejected just this sort of "same right" reasoning. In
Abbasi
, the Second Circuit had created a two-part test to determine whether a
Bivens
claim was novel: "First, it asked whether the asserted constitutional right was at issue in a previous
Bivens
case. Second, it asked whether the mechanism of injury was the same mechanism of injury in a previous
Bivens
case." 137 S. Ct. at 1859 (citation omitted);
see
Turkmen v. Hasty
,
The Court then provided a non-exhaustive list of "differences that are meaningful enough to make a given context a new one":
A case might differ in a meaningful way because of [1] the rank of the officers involved; [2] the constitutional right at issue; [3] the generality or specificity of the official action; [4] the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; [5] the statutory or other legal mandate under which the officer was operating; [6] the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or [7] the presence of potential special factors that previous Bivens cases did not consider.
2.
By any measure, Cantú's claims are meaningfully different from the Fourth Amendment claim at issue in
Bivens
. He does not allege the officers entered his home without a warrant or violated his rights of privacy. Rather, Cantú alleges Moody and LaBuz violated the Fourth Amendment by falsely stating in affidavits that Cantú willingly took possession of the cooler ... to suggest he knowingly participated in a drug transaction ... to induce prosecutors to charge him ... to cause Cantú to be seized.
See
Wilkie v. Robbins
,
The second question is whether we should engage in the "disfavored judicial activity" of recognizing a new
Bivens
action.
Id.
at 1857 (quotation omitted). Again, no. There are legion "special factors" counseling that result. One is the existence of a statutory scheme for torts committed by federal officers.
See
A final special factor counseling hesitation is the nature of the underlying federal law enforcement activity. While
Bivens
involved an investigation into seemingly local conduct, this case involves a multi-jurisdictional investigation into transnational organized crime committed by a violent gang that has wreaked havoc along our border with Mexico. This case therefore implicates the security of our international border.
Cf.
Abbasi
,
In the face of these considerations, "courts may not create [a cause of action], no matter how desirable that might be as a policy matter."
Alexander v. Sandoval
,
III.
Finally, Cantú appeals the denial of leave to file a fourth amended complaint. The district court denied leave because Cantú already had numerous opportunities to amend his complaint, and the proposed amended complaint contained claims that Cantú's counsel previously agreed to remove.
See
Foman v. Davis
,
AFFIRMED.
JAMES E. GRAVES, JR., Circuit Judge, dissenting in part:
I respectfully dissent from the majority's opinion insofar as it concludes there is no Bivens cause of action for fabrication of evidence.
I agree with the majority's conclusion that Cantú's claim of malicious prosecution/fabrication of evidence presents a "new context" for a Bivens claim under Supreme Court precedent. However, while the majority concludes several special factors counsel against recognizing a new claim, I would reach the opposite conclusion and determine no such factors dictate against recognizing a new Bivens action here.
Abbasi
instructs courts to focus the "special factors" inquiry "on maintaining
*425
the separation of powers: 'separation-of-powers principles are or should be central to the analysis.' "
Hernandez v. Mesa
,
Some of the factors the Supreme Court considered in Abbasi which counseled against recognizing a Bivens action were that the plaintiffs were suing high level Executive Officials for the acts of their subordinates, the lawsuit challenged "the formulation and implementation of a general policy," and the claim implicated "sensitive issues of national security." Id. at 1860-61. These factors meant the plaintiffs were going beyond challenging "standard 'law enforcement operations' " and were challenging "major elements of the Government's whole response to the September 11 attacks." Id. at 1861. As a result, the Court found it prudent to decline to create a new claim and instead deferred to the Executive Branch's authority in military and national security affairs, as well as to Congress' ability to designate a specific channel for the courts to review such authority. Id.
No such concerns are present in this case. Here, Cantú seeks to hold accountable two individual law enforcement officers who allegedly lied to support a finding of probable cause and a grand jury indictment, thereby leading to his prosecution and two years of imprisonment. This is exactly the type of run-of-the-mill "law enforcement overreach" claim
Abbasi
emphasized could still be recognized under
Bivens
.
Abbasi
, 137 S. Ct. at 1862. In the instant case, there are no national security concerns,
1
no broad governmental policies at stake, and no high-level executive officials being sued for the actions of their subordinates. Nor is the giving of affidavits by law enforcement officials a heavily regulated area closely overseen by Congress so as to suggest Congress prefers courts not to interfere.
See
Hernandez
,
*426
Moreover, while the Government argues that Cantú may have other remedies available through the Federal Tort Claims Act ("FTCA"), the FTCA does not provide remedies for constitutional violations.
See
Having recognized a Bivens cause of action, I would then conclude that Cantú adequately alleged such a claim. Accordingly, I dissent from the majority's opinion on this issue.
In his notice of appeal, Cantú says "FINAL JUDGMENT has not been entered." But in his opening brief he argues we have jurisdiction pursuant to a final judgment. Cantú does not explain the discrepancy, nor do the defendants. It's possible Cantú thought the four dismissal orders did not satisfy the separate-judgment requirement of Federal Rule of Civil Procedure 58(a). But it doesn't matter that each "order [was] denominat[ed] as an 'order,' rather than a 'judgment.' "
Local Union No. 1992 of Int'l Bhd. of Elec. Workers v. Okonite Co.
,
Litigants (and courts) often write and speak about § 1983 claims as if the plaintiff asserts a common-law tort action, like malicious prosecution. This habit is not a profile in precision. In a § 1983 case, the plaintiff must assert someone violated the Constitution or other federal law.
See
Cantú also sued Moody and LaBuz under the Fifth-Amendment-by-way-of- Bivens . We reject that claim for the same reason we reject his Fourteenth Amendment claim against Barrera: It is unclear whether he appealed the Fifth Amendment claim at all; the phrase "Fifth Amendment" appears nowhere in the argument of his opening brief. And his allegations to support that claim are conclusory in all events.
Our dissenting colleague takes issue with our analysis in two ways. First, Judge Graves notes this case is factually distinguishable from Abbasi . See post , at 424-26 (Graves, J., dissenting in part). But mere distinguishability is irrelevant; were it otherwise, federal courts would be free to infer Bivens actions in any case not involving post-9/11 detention policies. And we know that's wrong. See Abbasi , 137 S. Ct. at 1857 (noting such lawmaking is a " 'disfavored' judicial activity"). Second, Judge Graves notes the FTCA might not provide a remedy to Cantú. See post , at 425-26 (Graves, J., dissenting in part). Fair enough. But the Supreme Court has said that possibility is insufficient to warrant the judicial creation of a Bivens action-after all, it could be evidence that Congress chose not to afford a remedy. See Abbasi , 137 S. Ct. at 1858-59, 1865.
While the majority characterizes the investigation at issue in this case as a multi-jurisdictional investigation into transnational organized crime necessarily involving the security of our international border, the Government has not argued that this case implicates any national security interests. In fact, the Government's main argument against recognizing a Bivens action here is that Cantú could have filed suit under the Federal Tort Claims Act. See discussion infra . Given the Government's ability to articulate its own interests, I would decline to create a national security concern where the Government has not alleged one.
Reference
- Full Case Name
- Daniel Enrique CANTÚ, Plaintiff-Appellant, v. James M. MOODY; Erin S. LaBuz, Also Known as Erin S. Hayne; Nathan Husak; David De Los Santos; Ryan Porter; Rosa Lee Garza; Alfredo Barrera; United States of America; Christopher Lee, Defendants-Appellees.
- Cited By
- 142 cases
- Status
- Published