United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit

No. 24-60080 FILED December 23, 2024 ____________ Lyle W. Cayce Gabino Ramos Hernandez, Clerk

Plaintiff—Appellant,

versus Phillip Causey,

Defendant—Appellee. ______________________________

Appeal from the United States District Court for the Southern District of Mississippi USDC No. 2:17-CV-123 ______________________________ Before Elrod, Chief Judge, Dennis and Higginson, Circuit Judges. Stephen A. Higginson, Circuit Judge: This appeal arises from a traffic-stop-turned-officer-shooting. After Immigration and Customs Enforcement Agent Phillip Causey shot plaintiff- appellant Gabino Ramos Hernandez, Hernandez sued Causey under 42 U.S.C. § 1983 and Bivens. The district court granted Causey’s motion to dis- miss and denied Hernandez’s motion for leave to amend the complaint. Her- nandez timely appealed. The district court correctly recognized that finding the availability of a Bivens remedy here would expand Bivens to a new context in contravention Case: 24-60080 Document: 71-1 Page: 2 Date Filed: 12/23/2024

No. 24-60080

of the Supreme Court’s guidance in Egbert. The court also correctly found that, even though Hernandez had properly pled an excessive force claim for the shooting, Causey did not act under color of state law as is required to sustain a claim under § 1983. We accordingly AFFIRM the dismissal of the appealed claims and AFFIRM the denial of leave to amend the complaint as further amendment would be futile. I. On July 20, 2016, Laurel Police Department Officer David Driskell observed Hernandez fail to come to a complete stop at a stop sign. Officer Driskell observed the vehicle behind Hernandez’s appeared to have an intox- icated driver; the vehicle was being driven by Hernandez’s brother, Jose Mendoza. Officer Driskell stopped both vehicles and initially tried to ques- tion Mendoza while Hernandez spent “time standing by and waiting.” 1 After verbally requesting clarification on Mendoza’s answers several times, Officer Driskell called ICE Agents McGhee and Sharff; the body camera footage showed Officer Driskell asking, “Can you assist me with some Spanish?” to request interpretation services for his questioning of Mendoza. Officer Driskell then saw Hernandez approaching and shouted, “Do you speak English?” Hernandez responded, “What’s the problem?” Officer Driskell indicated Mendoza and replied, “He’s drunk.” Officer Driskell and Hernandez continued speaking for a few seconds but had trouble understand- ing each other. Officer Driskell said, “I tell you what, I got somebody who

don’t understand you. So, hang tight right there, okay?” As the ICE Agents

_____________________ 1 Hernandez describes his amended complaints as “supplemental and amended” complaints. His allegations in prior complaints—such as the First Amended Complaint quoted here—therefore remain live.

2 Case: 24-60080 Document: 71-1 Page: 3 Date Filed: 12/23/2024

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arrived, Hernandez left the area of the traffic stop. Hernandez all