Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ANTHONY FLORES, Case No.: 3:24-cv-01189-JES-MSB 12 Plaintiff, ORDER GRANTING DEFENDANT’S MOTION TO DISMISS THE FIRST 13 v. CAUSE OF ACTION AGAINST 14 MARCOS ANDRADE, individually DEFENDANT MARCOS ANDRADE and in his official capacity; and the FOR FAILURE TO STATE A 15 UNITED STATES OF AMERICA, CLAIM, WITH PREJUDICE 16 [ECF No. 40] 17 Defendants. 18 19 Before the Court is Defendant Border Patrol Agent Marcos Andrade’s (“Andrade”) 20 Motion to Dismiss the Fourth Amendment excessive force Bivens claim against him in the 21 Third Amended Complaint. ECF No. 40, (“Mot.”). Plaintiff Anthony Flores (“Plaintiff” or 22 “Flores”) filed an Opposition, and Defendant filed a Reply. ECF Nos. 43, 44. After due 23 consideration and for the reasons discussed below, the Court GRANTS Defendant's 24 Motion with prejudice. 25 // 26 // 27 // 28 // 1 I. BACKGROUND 2 A. Procedural Background 3 On October 6, 2025, the Court granted Andrade’s motion to dismiss the Second 4 Amended Complaint (“SAC”), finding that Flores’ Fourth Amendment excessive force 5 claim against Andrade presented a “new context” under Bivens and that special factors— 6 namely, the existence of alternative remedial structures—precluded a Bivens remedy. 7 Flores v. Andrade, No. 3:24-CV-01189-JES-MSB, 2025 WL 2830630, at *2-5 (S.D. Cal. 8 Oct. 6, 2025); Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 9 403 U.S. 388, 389, 397 (1971); Egbert v. Boule, 596 U.S. 482, 498 (2022). The Court found 10 the SAC “conspicuously” silent as to any lack of nexus between Andrade’s conduct and 11 Border Patrol’s mandate. Id. at *4. It, therefore, granted the motion with leave to amend. 12 Id. at *5. 13 Flores filed the Third Amended Complaint on October 27, 2025. ECF No. 39. (“TAC”). 14 The TAC makes two substantive changes from the SAC: (1) paragraph 17 alleges that 15 Andrade “was acting under the color of law in that he purported to act in the performance 16 of his official duties.” The SAC alleges that he was acting “in his official capacity and 17 under the color of law;” and (2) paragraph 59 alleges that “[w]hen [Andrade] interacted 18 with and shot Mr. Flores at the intersection, [he] was not investigating cross-border 19 criminal activity. Nor was he investigating or enforcing immigration, smuggling, customs, 20 or other border related laws.” TAC ¶¶ 17, 59. The TAC otherwise repeats, verbatim in 21 substantial part, the SAC’s allegations. Notably, paragraphs 70, 78, 84, 92, and 101 22 continue to allege, without qualification, that Andrade “acted in his official capacity and in 23 the scope of his employment as a Border Patrol agent of the United States of America.” Id. 24 ¶¶ 70, 78, 84, 92, 101. 25 Andrade asks the Court to dismiss Flores’ excessive force claim under Bivens, 26 arguing that the TAC’s amendments do not cure the previously identified defects. Mot. at 27 12-18. He argues, further, that if the Court finds that the amendments are sufficient to 28 // 1 permit the claim to survive, dismissal is still required because he is entitled to qualified 2 immunity. Id. at 18-19. 3 B. Factual Allegations 4 The Court incorporates by reference the factual background set forth in its October 5 6, 2025, Order (“October 6th Order”). Flores, 2025 WL 2830630, at *1. 6 In brief, Flores alleges that on July 11, 2022, while driving in Calexico, California, 7 he was shot by Andrade, a uniformed Customs and Border Protection agent, while stopped 8 in bumper-to-bumper traffic. TAC ¶¶ 1, 19–24. Flores alleges he was unarmed, posed no 9 danger, and was not committing any crimes. Id. ¶¶ 2–3, 21, 29. Andrade allegedly exited 10 his vehicle, drew his firearm, yelled “Stop, Stop,” and opened fire within seconds, before 11 Flores could process the command. Id. ¶¶ 23, 39–41. Flores sustained gunshot wounds to 12 his shoulder, eye, and hand. Id. ¶ 5. 13 II. LEGAL STANDARD 14 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to 15 state a claim tests the legal sufficiency of a plaintiff’s claim. Navarro v. Block, 250 F.3d 16 729, 732 (9th Cir. 2001). When considering the motion, the court must accept as true all 17 well-pleaded factual allegations in the complaint. Bell Atlantic Corp. v. Twombly, 550 U.S. 18 544, 555 (2007). The court need not accept as true legal conclusions cast as factual 19 allegations. Id.; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[t]hreadbare recitals of the 20 elements of a cause of action, supported by mere conclusory statements” are insufficient). 21 A complaint must “state a claim for relief that is plausible on its face.” Twombly, 550 22 U.S. at 570. To survive a motion to dismiss, a complaint must include non-conclusory 23 factual content. Id. at 555; Iqbal, 556 U.S. at 679. The facts and the reasonable inferences 24 drawn from those facts must show a plausible—not just a possible—claim for relief. 25 Twombly, 550 U.S. at 556; Iqbal, 556 U.S. at 679; Moss v. U.S. Secret Service, 572 F.3d 26 962, 969 (9th Cir. 2009). The focus is on the complaint, as opposed to any new facts alleged 27 in, for example, the opposition to a defendant’s motion to dismiss. See Schneider v. 28 // 1 California Dep’t of Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir. 1998), reversed and 2 remanded on other grounds as stated in 345 F.3d 716 (9th Cir. 2003). 3 “Determining whether a complaint states a plausible claim for relief [is] . . . a context- 4 specific task that requires the reviewing court to draw on its judicial experience and 5 common sense.” Iqbal, 556 U.S. at 679. The “mere possibility of misconduct” or 6 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this 7 plausibility standard. Id.; see also Moss, 572 F.3d at 969. 8 III. DISCUSSION 9 A. The TAC’s Amendments Do Not Cure the “New Context” Defect. 10 As the Court explained in its October 6th Order, courts engage in a two-step inquiry 11 when analyzing a Bivens claim. First, the Court determines whether the claim “presents a 12 new Bivens context.” Egbert, 596 U.S. at 491. If the claim presents a “new context,” the 13 second step of this test requires courts to ask whether “there are special factors indicating 14 that the Judiciary is at least arguably less equipped than Congress to weigh the costs and 15 benefits of allowing a damages action to proceed.” Id. at 492 (internal quotation marks 16 omitted). 17 1. Flores’ Claim Presents a “New Context.” 18 The Supreme Court has instructed that a case presents a new context where it 19 involves, inter alia “a new category of defendants.” Hernandez v. Mesa, 589 U.S. 93, 102 20 (2020) (citing Correctional Services Corp. v. Malesko, 534 U.S. 61, 68 (2001)). In Egbert, 21 the Court applied this same “new category of defendants” reasoning to Border Patrol 22 agents. 596 U.S. at 495. There, the Court specifically asked, “whether a court is competent 23 to authorize a damages action not just against Agent Egbert but against Border Patrol 24 agents generally,” and concluded, “plainly, . . . no.” Id. at 496. 25 Here, the TAC alleges that Andrade was, at all relevant times, “acting in his official 26 capacity and in the scope of his employment as a Border Patrol agent of the United States 27 of America.” TAC ¶¶ 70, 78, 84, 92, 101. Under Egbert, that categorical fact—regardless 28 of the specific enforcement activity Andrade was engaged in at the moment of the 1 shooting—is sufficient, by itself, to place this claim in a new context. 596 U.S. at 495-96. 2 The Court, therefore, finds that Flores’ claim “presents a new Bivens context.” Id. at 491. 3 2. Paragraph 59 does not Alter This Conclusion. 4 The Federal Rules of Civil Procedure require that a complaint contains more than 5 mere “labels and conclusions” and a “formulaic recitation of the elements of a cause of 6 action.” Twombly, 550 U.S. at 555; Fed. R. Civ. P. 12(b)(6). 7 Paragraph 59 of the TAC asserts new allegations against Andrade. See TAC ¶ 59. 8 Specifically, Flores alleges that he was shot by Andrade, who at that time “was not 9 investigating cross-border criminal activity” and was not “enforcing immigration, 10 smuggling, customs, or other border related laws.” Id. The Court finds these allegations 11 are conclusory and does not affirmatively allege what Andrade was doing at the time of 12 the shooting. Id. Paragraph 59 tells the Court only what Andrade was not doing, while 13 paragraphs 70, 78, 84, 92, and 101—all of which were left unamended—continue to 14 affirmatively allege that Andrade acted within the scope of his employment as a Border 15 Patrol agent. Id.; Id ¶¶ 70, 78, 84, 92, and 101. 16 The TAC fails to identify any activity that Andrade was undertaking outside that 17 scope, nor does it allege any facts that suggest Andrade was acting in a purely private 18 capacity—untethered from his federal duties. See generally TAC. Absent such affirmative 19 allegations, paragraph 59's bare allegations is the kind of “conclusory” pleading that the 20 Supreme Court has instructed courts to disregard. Twombly, 550 U.S. at 555.; Iqbal, 556 21 U.S. at 678, 681. 22 Similarly, paragraph 17, alleges that Andrade “purported” to act within his official 23 duties, rather than that he did so, creates ambiguity without resolving it. TAC ¶ 17. The 24 remainder of the TAC still alleges, without qualification, that Andrade acted in his official 25 capacity and within the scope of his employment. Id. ¶¶ 70, 78, 84, 92, 101. Taking the 26 TAC’s factual allegations as a whole, and construing genuine ambiguities in Flores’ favor, 27 the Court cannot conclude that Flores has plausibly alleged that Andrade was acting outside 28 the categorical scope that Egbert forecloses. 596 U.S. at 495-96. 1 3. Flores’ Reliance on Mattia Remains Improper. 2 Flores, again, urges the Court to follow Mattia v. United States, No. CV-24-00252- 3 TUC-RM, 2024 WL 4858427, at *1 (D. Ariz. Aug. 7, 2025). As the Court found in its 4 October 6th Order, the Ninth Circuit has instructed that the new context analysis considers 5 only the three Supreme Court decisions recognizing an implied damages remedy—not 6 those of other district courts. Pettibone v. Russell, 59 F.4th 449, 455 (9th Cir. 2023) (“[T]he 7 Supreme Court has instructed us not to examine Bivens cases in the lower courts, but only 8 ‘the three cases in which the [Supreme] Court has implied a damages action.’” (quoting 9 Egbert, 596 U.S. at 490)). Mattia is neither binding, nor persuasive, authority on the new 10 context question. Id. Accordingly, the Court does not rely on it. 11 B. Special Factors Preclude Flores of a Bivens Remedy 12 In its October 6th Order, the Court found that Congress has provided alternative 13 remedial frameworks for individuals that have been allegedly aggrieved by the misconduct 14 of Border Patrol agents. Flores, 2025 WL 2830630 (explaining that plaintiffs, like Flores, 15 have alternative avenues to seek redress such as administrative review through the 16 Department of Homeland Security's Inspector General and Officer for Civil Rights and 17 Civil Liberties, and even potentially criminal prosecution). Flores, 2025 WL 2830630, at 18 *4-5; 8 C.F.R. §§ 287.10(a)–(b); 6 U.S.C. § 345(a)(1), (4), (6); 18 U.S.C. § 242. The 19 Supreme Court has held that the existence of such alternative remedies independently 20 forecloses a Bivens action, regardless of whether those remedies afford a plaintiff complete 21 relief. Egbert, 596 U.S. at 493, 498. 22 Nothing in the TAC's amendments disturbs this analysis, which turns on Andrade's 23 status and Border Patrol's mandate generally rather than the specific facts of this encounter. 24 Id. at 495–96. Once again, the Court accordingly, concludes that Flores has failed to state 25 a Bivens claim upon which relief may be granted. 26 C. Qualified Immunity 27 Because the Court finds that Flores has failed to state a claim for relief against 28 Andrade under Bivens, it need not reach whether Andrade is entitled to qualified immunity. 1 D. Leave to Amend 2 A court has discretion to deny leave to amend where amendment would be futile. 3 || Chappel v. Lab. Corp. of America, 232 F.3d 719, 725-26 (9th Cir. 2000); Jackson v. Carey, 4 F.3d 750, 758 (9th Cir. 2003) (holding that dismissal without leave to amend is 5 ||appropriate where the court is satisfied that the deficiencies of the complaint could not 6 || possibly be cured by amendment). Unlike the SAC, which was silent on the nexus question, 7 ||the TAC represents Flores’ considered attempt to cure the precise defect the Court 8 |/identified. As set forth above, the TAC fails to do so, and further amendment cannot 9 ||correct. The controlling defect is not a pleading gap that additional factual detail could 10 |/remedy. It is that Andrade's status as a Border Patrol agent, acting within the scope of his 11 || federal employment—which in several of the TAC’s paragraphs continue to allege—places 12 ||this claim in a new context under Egbert’s “new category of defendants” analysis, 13 ||regardless of what specific enforcement activity he was engaged. 596 U.S. at 495-96; see 14 || TAC 70, 78, 84, 92, and 101. 15 This categorical bar does not depend on the specific facts of Andrade’s conduct. 16 || Therefore, it is not feasible that any amendment, consistent with Flores’ prior allegations, 17 || could possibly cure it. The Court, thus, finds that further leave to amend would be futile. 18 IV. CONCLUSION 19 For the reasons set forth above, the Court GRANTS Defendant’s Motion to Dismiss 20 || the Fourth Amendment excessive force Bivens claim. Accordingly, the first cause of action 21 the TAC against Defendant Marcos Andrade is DISMISSED WITH PREJUDICE. 22 IT IS SO ORDERED. 23 || Dated: September 4, 2026 24 Sa— Sin, 25 Honorable James E. Sunmons Jr. United States District Judge 27 28