K.B. v. Perez , 664 F. App'x 756 ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 2, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
K.B., by and through her next friend,
ANGELA BOURELLE,
Plaintiff - Appellant,
v. No. 16-1155
(D.C. No. 1:14-CV-03514-WPJ-NYW)
CHRISTOPHER J. PEREZ, in his personal (D. Colo.)
capacity,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, PHILLIPS and McHUGH, Circuit Judges.
_________________________________
K.B. appeals the district court’s dismissal of her claim under Bivens v. Six
Unknown Named Agents, 403 U.S. 388 (1971), against her father’s probation officer
after she was denied visitation with her father while he was serving part of his term
of imprisonment at a halfway house. Exercising jurisdiction under 28 U.S.C. § 1291,
we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
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 This order and judgment is not binding precedent,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. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
I. Background
K.B.’s father was convicted in a Florida federal court of distribution of child
pornography and sentenced to five years imprisonment followed by ten years of
supervised release. He finished his term of imprisonment at a halfway house in
Colorado, where K.B. and her sister and mother visited him several times. According
to the complaint, the person assigned to become her father’s probation officer upon
his release from the halfway house directed staff there not to allow K.B. visitation
because she was a minor and the Colorado Sex Offender Management Board
(“SOMB”) guidelines prohibited such contact.
In response to the staff’s concerns, K.B.’s father produced an order from the
sentencing court pertaining to the conditions of his release. The order requires
K.B.’s father to complete an approved sex offender evaluation and treatment program
but also states: “Nothing in this approved program . . . can prevent the Defendant
from having unsupervised contact with his minor children, inside or outside his
home, without additional condition.” Aplt. App., Vol. 1 at 47. The order reiterates
that otherwise applicable rules under the SOMB guidelines would not apply to K.B’s
father “to the extent [they] would otherwise prevent contact with his children.” Id. at
48. Although the order sets forth the conditions that would apply to K.B.’s father
upon leaving the halfway house, the staff apparently interpreted it to mean that K.B.
was permitted to visit him while he was still there. She was allowed visitation with
her father for a few more weeks until, according to the complaint, her father’s
probation officer directed staff at the halfway house to ignore the court order,
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explaining that “he was trying to get ‘clarification’” on it. Id. at 12. K.B. was not
allowed visitation for about seven weeks. After that, for reasons not explained in the
complaint, she was again able to resume visiting her father. A few months later he
began his term of supervised release and moved home with K.B. and her sister and
mother. The complaint alleges that the probation officer caused K.B. to suffer
“severe emotional distress as a result of [his] arbitrary and illegal actions in
unlawfully exerting his authority, when no authority existed[,] which resulted in the
termination of her visitation with her Father.” Id. at 13.
The district court granted the probation officer’s motion to dismiss K.B.’s
complaint for failure to state a claim, concluding there was no implied damages
action under Bivens based on a federal official’s interference with the constitutional
right of familial association and declining to create such a remedy. In the alternative,
the court further concluded the probation officer was entitled to qualified immunity
because it was not clearly established that applying the SOMB guidelines to K.B.’s
father was improper.
II. Analysis
K.B. first argues that the court erred by concluding that she failed to state a
claim under Bivens based on the legal theory that her father’s probation officer could
be held liable for depriving her of her right to familial association with her father.
Because we agree that no Bivens remedy is available, we do not address K.B.’s
argument with respect to the probation officer’s qualified immunity.
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We review de novo the district court’s dismissal of a complaint for failure to
state a claim. Shimomura v. Carlson, 811 F.3d 349, 358 (10th Cir. 2015). “Like the
district court, we must determine whether the complaint contains sufficient facts,
accepted as true, to state a plausible claim for relief.” Id. (citing Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)). We view the factual allegations in the light most
favorable to K.B. as the nonmoving party and draw all reasonable inferences in her
favor. See Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009).
The right to familial association is a constitutionally-protected liberty interest.
Bryson v. City of Edmond, 905 F.2d 1386, 1393 (10th Cir. 1990). However, neither
the Supreme Court nor this court has authorized an action under Bivens to redress a
violation of this right. Instead, claims brought under Bivens have been dismissed on
other grounds, without requiring courts to decide whether to create new Bivens
remedies. See, e.g., Reichle v. Howards, 132 S. Ct. 2088, 2093 n.4 (2012) (finding
defendants were entitled to qualified immunity without deciding “whether Bivens
extends to First Amendment retaliatory arrest claims”); Pahls v. Thomas, 718 F.3d
1210, 1226 n.6 (10th Cir. 2013) (assuming “for purposes of this case only” that a
Bivens remedy was available but observing that “[t]he Supreme Court has been
reluctant to extend Bivens liability to any new context or new category of
defendants” (internal quotation marks omitted)).
To determine whether we should recognize a Bivens remedy under the
circumstances of this case, we first consider “whether any alternative, existing
process for protecting the interest amounts to a convincing reason for the Judicial
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Branch to refrain from providing a new and freestanding remedy in damages.”
Ingram v. Faruque, 728 F.3d 1239, 1244 (10th Cir. 2013) (internal quotation marks
omitted). “Second, even in the absence of an alternative, . . . [we] must make the
kind of remedial determination that is appropriate for a common-law tribunal, paying
particular heed to any special factors counseling hesitation before authorizing a new
kind of federal litigation.” Id. (ellipsis and internal quotation marks omitted).
With regard to the first inquiry, we note that in the context of this case, K.B.’s
right to familial association is coextensive with her father’s. K.B. concedes that her
father had access to remedial mechanisms for vindicating violations of his right to
familial association, such as filing a grievance through the Administrative Remedy
Program, see 28 C.F.R. § 542.10(a) (“The purpose of the Administrative Remedy
Program is to allow an inmate to seek formal review of an issue relating to any aspect
of his/her confinement.”), or bringing a federal suit for injunctive relief, see Corr.
Servs. Corp. v. Malesko, 534 U.S. 61, 74 (2001).
Even assuming that such remedies do not provide an adequate basis to
vindicate violations of K.B.’s right to familial association, we conclude that
authorizing a new kind of federal litigation is not warranted here. First, extending
Bivens would be contrary to the strong trend of limiting its reach. See Minneci v.
Pollard, 132 S. Ct. 617, 622 (2012) (noting that the Supreme Court has consistently
declined to fashion a Bivens remedy since 1980); see also Malesko, 534 U.S. at 74(“The caution toward extending Bivens remedies into any new context, a caution
consistently and repeatedly recognized for three decades, forecloses such an
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extension here.”). Moreover, doing so here could lead to unintended, unpredictable,
and far-reaching consequences, including inviting a wide range of actions by family
members of prisoners. Should Congress wish to confer the right to bring such
actions, it has the authority to do so; but we decline to imply a cause of action of
such potentially broad scope under these circumstances.
III. Conclusion
The district court’s judgment is affirmed.
Entered for the Court
Gregory A. Phillips
Circuit Judge
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