REPORT AND RECOMMENDATION

ROBERT F. CASTANEDA, Magistrate Judge.

Plaintiff Enrique Alfredo Tavares, proceeding pro se, filed suit under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). After due consideration, pursuant to 28 U.S.C. § 1915, the Court RECOMMENDS that Tavares's Bivens claim should be DISMISSED WITH PREJUDICE.

I. BACKGROUND

On November 2, 2016, the United States Attorney's Office for the Western District of Texas filed an application for writ of habeas corpus ad prosequendum to transfer Tavares1 from the El Paso County Jail Annex to the West Texas Detention Center ("WTDC").2 (ECF. No. 62: Ex. A) Tavares was set to appear in federal court for conspiracy to possess heroin with intent to distribute. See United States v. Tavares, No. 3-14-cr-01236-KC, ECF. No. 14, 114, 121 (W.D. Tex. Jan. 30, 2018).

On April 27, 2017, at WTDC, Tavares alleges that Captain McQuade, Sergeant Pittman, and Eli Basulto assaulted him. (ECF. No. 6) Specifically, Tavares alleges that Captain McQuade punched him in the face numerous times, Sergeant Pitman scratched him and squeezed his arm causing him to trip, and Eli Basulto slammed him on the ground. (Id.) Further, Tavares alleges that Eli Basulto lied about these events and had false charges filed against him. (Id.) At the time of the alleged assault, Tavares was a federal pretrial detainee at a private facility.

Subsequently, Tavares filed suit against LaSalle Corrections V, LLC ("LaSalle")3, Captain McQuade, Sergeant Pitman, and Eli Basulto (collectively "Defendants") under 42 U.S.C. § 1983. Tavares sued Captain McQuade, Sergeant Pitman, and Eli Basulto for excessive force and LaSalle for allowing the assault. (Id.)4 After the alleged assault, Tavares was remanded to state custody in June of 2017. (ECF. No. 62: Ex. B, D) Tavares is currently incarcerated in the Price Daniels Unit in Snyder, Texas. (ECF. No. 26)

II. LEGAL STANDARD

28 U.S.C. § 1915 instructs that a court "shall" dismiss an in forma pauperis complaint at any time, if it determines that the complaint is frivolous or it fails to state a claim on which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(i)-(ii) (2012). Further, the court may sua sponte dismiss on these grounds, even without serving the defendants. See Wilson v. Barrientos, 926 F.2d 480, 482 (5th Cir. 1991) ("Dismissal [under § 1915] is `often made sua sponte prior to the issuance of process, so as to spare prospective defendants the inconvenience and expense of answering such complaints.'") (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)). The standard under § 1915(e)(2)(B) for dismissing a frivolous complaint applies to both prisoner and non-prisoner complaints. Newsome v. EEOC, 301 F.3d 227, 231-33 (5th Cir. 2002) (per curiam) (affirming dismissal based on § 1915(e)(2)(B) in a non-prisoner case).

"[A] complaint . . . is frivolous where it lacks an arguable basis either in law or in fact." Neitzke, 490 U.S. at 325. "A complaint lacks an arguable basis in law if it is based on an indisputably meritless legal theory, such as if the complaint alleges the violation of a legal interest which clearly does not exist." Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999) (quoting Harper v. Showers, 174 F.3d 716, 718 (5th Cir. 1999)). A claim is factually frivolous if the facts are "clearly baseless, a category encompassing allegations that are `fanciful,' `fantastic,' and `delusional.'" Hicks v. Garner, 69 F.3d 22, 25 (5th Cir. 1995) (quoting Denton v. Hernandez, 504 U.S. 25, 33-34 (1992)).

To determine whether a complaint fails to state a claim upon which relief may be granted, courts engage in the same analysis as when ruling on a motion for dismissal under Federal Rule of Civil Procedure 12(b)(6). See Hale v. King, 642 F.3d 492, 497-99 (5th Cir. 2011) (per curiam). To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citation omitted). To meet this pleading standard, the complaint must state more than "an unadorned, thedefendant-unlawfully-harmed-me accusation." Id. (citation omitted). "Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted).

Furthermore, pro se pleadings are reviewed under a less stringent standard than those drafted by attorneys, and such pleadings are entitled to a liberal construction that includes all reasonable inferences that can be drawn from them. Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam). However, even a pro se complaint may not merely set forth conclusory allegations. The pro se litigant must still set forth facts giving rise to a claim on which relief may be granted. Johnson v. Atkins, 999 F.2d 99, 100 (5th Cir. 1993) (per curiam) (citation omitted).

III. DISCUSSION

At the time of his alleged assault, Tavares was being held in a private prison under the color of federal law. Therefore, instead of an action under § 1983, this Court will evaluate Tavares's claim under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). A Bivens action is analogous to an action under § 1983 except that § 1983 applies to constitutional violations by state, rather than federal actors. Abate v. Southern Pac. Transp. Co., 993 F.2d 107, 110 n. 14 (5th Cir.1993). Thus, to succeed on a Bivens cause of action, Tavares must demonstrate a constitutional violation. Garcia v. U.S., 666 F.2d 960, 966 (5th Cir. 1982).

In Ziglar v. Abbassi, the Supreme Court recognized only three valid Bivens cases. 137 S.Ct. 1843, 1854-55. First, in Bivens itself, the Supreme Court recognized an implied damage action to compensate persons injured by federal officers in violation of the Fourth Amendment's prohibition against unreasonable searches and seizures. Id. at 1854 (citing Bivens v. Six Unknown Fed. Narcotics Agents 403 U.S. 388, 397 (1971)). Second, in Davis v. Passman, the Supreme Court recognized a Bivens remedy for a Fifth Amendment gender-discrimination case. 442 U.S. 228 (1979). Finally, in Carlson v. Green, the Supreme Court recognized a Bivens remedy for an Eight Amendment Cruel and Unusual Punishment Clause case. 446 U.S. 14 (1980). Outside of these three unique circumstances, the Supreme Court views new Bivens claims with disfavor. Abbassi, 137 S.Ct. at 1857. For over 30 years the Supreme Court has consistently refused to extend Bivens into new context. Id. (citing Correctional Services Corp. v. Malesko, 534 U.S. 61, 68 (2001)).

Tavares brings a new Bivens claim. A Bivens claim is new if it is meaningfully different from the previous Supreme Court Bivens cases. Abbassi, 137 S.Ct. at 1859. Meaningful differences may include: the rank of the officers involved; the constitutional right at issue; the extent of judicial guidance for the official conduct; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors not considered in previous Bivens cases. Id. at 1860.

Here, Tavares's case is meaningfully different. First, the facts of this case are clearly distinct from the three original cases decided by the Supreme Court. Further, while the Supreme Court has decided two similar cases, both cases were brought forth under a different Constitutional Amendment. Specifically, in Correctional Services Corp. v. Malesko, the Supreme Court declined to create an implied damages remedy in an Eighth Amendment suit against a private prison. 534 U.S. 61, 63 (2001). Similarly, in Minneci v. Pollard, the Supreme Court declined to create an implied damages remedy in an Eighth Amendment suit against prison guards at a private prison. 565 U.S. 118, 120 (2012). While Malesko and Minneci involved a private prison and prison guards of a private prison respectively, both cases were brought under the Eighth Amendment. In this case, Tavares's Bivens claim is under the Fifth Amendment. See Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979) (holding that a pretrial detainee's constitutional claims are considered under the due process clause). Thus, both Malesko and Minneci will not expressly bar Tavares's Bivens claim.

New Bivens claims are unavailable "if there are special factors counselling hesitation in the absence of affirmative action by Congress" or if there are alternative, existing processes for relief. Abbasi, 137 S.Ct. at 1857. In this case, without deciding if there are any special factors involved, Tavares has an alternative remedy under Texas tort law. Specifically, Texas law imposes general tort duties on private prisons. See Minneci v. Pollard, 565 U.S. 118, 120 (2012) (citing Salazar v. Collins, 255 S.W.3d 191, 198-200 (Tex.App.-Waco 2008, no pet.)). Therefore, Tavares cannot bring a Bivens action against the Defendants.

Finally, under Bivens, LaSalle cannot be vicariously liable for the actions of Captain McQuade, Sergeant Pittman, and Eli Basulto. A Bivens action is designed to hold the individual responsible for his or her own actions, not the acts of others. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).

IV. CONCLUSION

For the foregoing reasons, the Court RECOMMENDS that Tavares's Bivens claim should be DISMISSED WITH PREJUDICE. The Court FURTHER RECOMMENDS that all pending motions be DENIED as MOOT.