Assuming that Mueller correctly alleged that Gallina lied to the OPR, does Mueller's have a valid cause of action under Bivens?

Question

Mueller was a DEA agent and Gallina was the Special Agent in charge of the Detroit DEA office. In 1997, Gallina supposedly issued a letter to a firearm manufacturer authorizing Mueller to buy an otherwise unobtainable firearm. In 2000 the DEA's Office of Professional Responsibility (OPR) investigated whether Mueller lawfully obtained the firearm. Gallina, no longer in charge of the DEA Detroit office, was interviewed by the OPR and said he did not review, sign, or authorize the 1997 letter. Partly on the basis of Gallina's statement the OPR obtained a search warrant, searched Mueller's home and DEA office, and seized items. Mueller was then questioned by the OPR and federal tax authorities. In November 2000, the Department of Justice dropped the matter against Mueller. Mueller sued Gallina under Bivens v. Six Unknown Agents (1971) claiming that Gallina's lie caused a violation of Mueller's Fourth Amendment right to be free from unreasonable search and seizures.
What will be an ideal response?

Answer 1

NO
Liability under Bivens requires the personal involvement of the defendant and violations of the Fourth Amendment require that action be taken by a government agent in an official capacity. In this case, Gallina did not procure or execute the purportedly defective search warrants. He did not provide the affidavit that supported these search warrants. He did not investigate Mueller in the pursuit of these search warrants. Finally, he did not supervise or direct the individuals who procured or executed these search warrants or who investigated Mueller in this matter. Mueller's only allegation is that Gallina provided false information in response to an inquiry from an investigator. During the OPR interview, Gallina only spoke in the capacity of a witness. Since any false information he provided was provided in his capacity as an individual and not as an investigator acting on behalf of the Federal Government, he lacks the requisite personal involvement to be held constitutionally liable under Bivens. Mueller might have a cause of action against Gallina in state tort law.