John Hammond v. Thomas Acerno , Special Agent “hsi”

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 25-2022
J OHN HAMMOND ,
Appellant
v.
THOMAS A CERNO , SPECIAL AGENT “HSI”; CHRISTOPHER CHASE , SPECIAL AGENT “HSI”;
D AVID H ELPER , SPECIAL AGENT “HSI”; D OMINIC RAGUZ , SPECIAL A GENT “ATF”; SA.
NAME UNKNOWN, “POSTAL W ORKER ”; SA. NAME UNKNOWN, “ICE”; SA. NAME
UNKNOWN, “ICE”; SA. NAME UNKNOWN, “ICE”; PSP. NAME UNKNOWN,
“SERT”; PSP. NAME UNKNOWN, “SERT”; TPD. NAME UNKNOWN,
“T OWAMENCIN POLICE”; TPD. NAME UNKNOWN, “T OWAMENCIN POLICE ”; TPD.
NAME UNKNOWN, “TOWAMENCIN POLICE ”; TPD. NAME UNKNOWN,
“T OWAMENCIN POLICE”; PSP. NAME UNKNOWN, “SERT”; PSP. NAME UNKNOWN,
“SERT”
_____________________________
On Appeal from the U.S. District Court, E.D. Pa.
Judge Chad F. Kenney, No. 2:21-cv-03688
Before: C HAGARES , Chief Judge; RESTREPO and MONTGOMERY -REEVES , Circuit Judges
Submitted: June 10, 2026; Decided: June 18, 2026
_____________________________
N ONPRECEDENTIAL O PINION*
MONTGOMERY -REEVES , Circuit Judge.
This appeal asks whether John Hammond may assert a claim under Bivens v. Six
Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) against
three Homeland Security Investigations (“HSI”) agents for alleged excessive force during
* This is not an opinion of the full Court and, pursuant to 3d Cir. IOP 5.7, is not binding
precedent.

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an arrest. We do not reach that issue, however, because Hammond forfeited his arguments
on appeal. We will therefore affirm.
We take the following facts from Hammond’s prisoner complaint. In 2019, while
Hammond and his wife were asleep at Hammond’s father-in-law’s house, federal and state
law enforcement officers entered the residence to execute a search warrant without
knocking and announcing. The officers pulled Hammond and his wife (both in a state of
undress at the time) out of bed at gunpoint, forced them to the ground, and “violently”
detained them before allowing them to dress. Appendix (hereinafter “App. __”) 12. The
officers detained others in the house by taking them to the ground as well.
Pro se, Hammond filed a prisoner complaint against several unnamed state and local
officers and HSI agents Thomas Acerno, Christopher Chase, and David Hepler
(collectively, the “Agents”). As against the Agents, Hammond alleged Bivens claims for
“initiating falsehood,” “official oppression,” “illegal search and seizure,” and violations of
“due process.” App. 17. The District Court screened Hammond’s complaint under 28
U.S.C. § 1915 and permitted Hammond to proceed on four Bivens claims: excessive force,
unauthorized no-knock entry, false statements in a search warrant, and deliberate
indifference to a medical need. Though the District Court granted leave to amend,
Hammond chose to stand on his original complaint. The Agents answered that complaint
and moved for judgment on the pleadings. Hammond did not respond. The District Court
then dismissed Hammond’s complaint against the Agents with prejudice, ruling that each
of the four claims impermissibly extended the Bivens remedy to new contexts.

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Now, for the first time on appeal, Hammond argues that one of his Bivens claims—
relating to the Agents’ alleged excessive force—did not extend the doctrine to a new
context.1 “It is well-established that arguments raised for the first time on appeal are not
properly preserved for appellate review.” Simko v. U.S. Steel Corp., 992 F.3d 198, 205 (3d
Cir. 2021) (citing Del. Nation v. Pennsylvania, 446 F.3d 410, 416 (3d Cir. 2016)). Instead,
they are forfeited, and “we will not reach a forfeited issue in civil cases absent truly
‘exceptional circumstances.’” Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 877
F.3d 136, 147 (3d Cir. 2017) (quoting Brown v. Philip Morris Inc., 250 F.3d 789, 799 (3d
Cir. 2001)); Simko, 992 F.3d at 205–06. Those circumstances include when “the public
interest requires that the issues be heard or when a manifest injustice would result from the
failure to consider the new issues.” Simko, 992 F.3d at 206 (alterations omitted) (quoting
United States v. Anthony Dell’Aquilla, Enters. & Subsidiaries, 150 F.3d 329, 335 (3d Cir.
1998)).
Hammond’s opening brief says nothing about his failure to raise his arguments
below. Instead, Hammond addresses the issue for the first time in his reply brief, arguing
1 The District Court had jurisdiction under 28 U.S.C. § 1331. Though the District Court
dismissed the Bivens claims against the Agents with prejudice, its dismissal order was
nonfinal because it permitted Hammond leave to add state officers for § 1983 claims
unrelated to this appeal. The District Court also has not entered a Rule 54(b) certification.
Still, we may exercise final-order jurisdiction because Hammond has failed to serve the
unnamed state officers in this case. See Gomez v. Gov’t of V.I., 882 F.2d 733, 735-36 (3d
Cir. 1989) (“There was no Rule 54(b) certification in this case. However, a named
defendant who has not been served is not a ‘party’ within the meaning of Rule 54(b).”).
We thus exercise jurisdiction under 28 U.S.C. § 1291 over the with-prejudice dismissal of
Hammond’s claims against the Agents.

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that Stackhouse v. Mazurkiewicz, 951 F.2d 29 (3d Cir. 1991) forecloses a forfeiture finding.
Not so. In Stackhouse, we held that a District Court cannot dismiss a complaint for a
plaintiff’s failure to respond to a motion to dismiss because doing so is an impermissible
sanction; it must consider the merits to determine if the movant carried its burden.
Stackhouse, 951 F.2d at 29–30. But here, the District Court reached the merits. So, the
District Court abided by Stackhouse; it did not deviate from it. And more to the point,
Stackhouse never addressed or mentioned forfeiture.
Outside of Stackhouse, Hammond fails to identify any reason “public interest
requires” that his case be heard or that “manifest injustice would result from the failure to
consider” the issues he raises on appeal. Simko, 992 F.3d at 206. So we will AFFIRM the
District Court’s order.

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