Summary
denying motion to dismiss state law claims pending the appropriate certifications being filed and noting that the federal defendants could summarily move for dismissal of the state law claims pursuant to the Westfall Act when their certifications were filed
Summary of this case from Mochama v. Butler Cnty.Opinion
Civil Action No. 99-3496, Section "A" (2)
December 16, 2002
ORDER AND REASONS
Before the Court is a Motion to Dismiss of Individual Federal Defendants (Rec. Doc. 159) filed by Arthur Hitchins, John Scallan, George Breedy, Eric Levis, David Drasutis, and Daryl Lyons (collectively "the Federal Defendants" or "Defendants"). The motion, set for hearing on December 4, 2002, is before the Court on the briefs without oral argument. For the reasons that follow, the motion is GRANTED IN PART AND DENIED IN PART. I. BACKGROUND
This suit arises out of an incident whereupon at least five law enforcement officers, as part of a "drug sting" operation, entered and searched Plaintiffs' Chalmette, Louisiana home pursuant to a search warrant. Plaintiffs were detained for approximately two hours while the home was searched. No drugs or evidence of any illegal activity was found in either the initial search or in a second search conducted with the use of drug dogs. Plaintiffs allege that their home was searched in error because the officers relied upon outdated or stale information to determine that their drug suspect resided at Plaintiffs' address. In fact, Plaintiffs had purchased the home 6 years earlier and had lived there continuously.
Plaintiffs filed their original complaint in November 1999 (Rec. Doc. 1). In their original complaint, Plaintiffs sought damages and other relief based on alleged violations of the U.S. Constitution and Louisiana state law. Claims were brought against the federal, state, and local law enforcement officers involved in the matter and their respective agencies and governmental entities including the United States.
On November 12, 2002, Plaintiffs filed their Third Amended and Supplemental Complaint which specifically named the Federal Defendants in their individual capacities. II. The Federal Defendants' Motion to Dismiss
The complaint also makes reference to the Federal Defendants acting in their official capacities but an official capacity claim is merely another way of asserting a claim against the governmental entity for which the defendant serves. Ashe v. Corley, 992 F.2d 540, 541 n. 1 (5th Cir. 1993) (citing Will v. Michigan Dep't of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989)). The Federal Defendants are employed by the United States. Earlier this year the Court dismissed with prejudice all claims against the United States. Rec. Doc. 74. Thus, only individual or personal capacity claims against the Federal Defendants are viable at this time, and Plaintiffs concede as much in their opposition memorandum.
The Federal Defendants move pursuant to Rule 12(b)(6) to dismiss the claims asserted against them in the Third Amended and Supplemental Complaint on the following grounds:
A. "Judgment Bar Provision of 28 U.S.C. § 2676
Defendants argue that the "judgment bar" provision of 28 U.S.C. § 2676 mandates dismissal of all claims due to this Court's previous dismissal of Plaintiffs' Federal Tort Claims Act ("FTCA") action. Defendants argue that section 2676 clearly bars a claimant from proceeding against an individual federal employee once any judgment, favorable or not, has been reached in an FTCA action arising from the same events.
In opposition, Plaintiffs argue that a Bivens claim and an FTCA claim differ fundamentally and that the Supreme Court has recognized that the actions are not mutually exclusive.
Bivens v. Six Unknown Named Agents of Federal Bureaus of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (recognizing an action for damages resulting from federal agents' alleged constitutional violations).
Section 2676, entitled "Judgment as bar," provides:
The judgment in an action under [the FTCA] shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim.28 U.S.C. § 2676.
The jurisprudence interpreting this provision has recognized that an FTCA judgment favorable to Plaintiff precludes a Bivens action arising out of the same events. See, e.g., Arevalo v. Woods, 811 F.2d 487 (9th Cir. 1987). This is true even where the FTCA claim and the Bivens claim appear in the same complaint and are tried together with judgments entered simultaneously. See, e.g., Rodriguez v. Handy, 873 F.2d 814 (5th Cir. 1989); Serra v. Pichardo, 786 F.2d 237, 241 (6th Cir. 1986) (citingAetna Cas. Sur. Co. v. United States, 570 F.2d 1197 (4th Cir. 1978). Where an FTCA judgment is rendered against the plaintiff, a subsequent lawsuit arising out the same events and premised upon Bivens will be barred. Hoosier Bancorp, Inc. v. Rasmussen, 90 F.3d 180 (7th Cir. 1996).
The reverse is not necessarily true as some circuits hold that a judgment against the Plaintiff on the Bivens claim is not automatically preclusive of a subsequent FTCA claim against the United States. Sterling v. United States, 85 F.3d 1225, 1227-28 (7th Cir. 1996) (citing Ting v. United States, 927 F.2d 1504, 1513 n. 10 (9th Cir. 1991)).
The Court is not persuaded that section 2676 bars Plaintiffs' claims in this case. First, although it is widely recognized that a judgment in favor of the United States on the FTCA claim bars a subsequent Bivens claim, none of the cases the Court has reviewed considered a situation like this one where the decision favorable to the United States was based upon a procedural defect in Plaintiffs' complaint and had nothing to do with the merits of the claim.
Second, section 2676 speaks of a judgment not an interlocutory order or decision. No judgment in favor of the United States has been issued in this case. Thus, the Court concludes that 28 U.S.C. § 2676 does not bar the claims against the Federal Defendants in their individual capacities. The motion to dismiss based upon the "judgment bar" provision is DENIED.
B. Absolute Immunity Under the Westfall Act
The Federal Defendants argue that Plaintiffs' state law claims are barred by virtue of the Federal Employees Liability Reform and Tort Compensation Act of 1988, the Westfall Act, 28 U.S.C. § 2679 (b)(1). They point out that the Act gives federal employees absolute immunity for torts committed in the scope of their employment and makes an FTCA action against the United States the exclusive remedy.
Earlier this year the Court dismissed Plaintiffs' FTCA claims but Defendants argue that this does not affect the analysis under the Westfall Act.
In opposition, Plaintiffs argue that the Westfall Act is inapplicable where the claim at issue is for a constitutional violation.
The Westfall Act provides in pertinent part:
The remedy against the United States provided by [the FTCA] for injury or loss of property, or personal injury or death arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment is exclusive of any other civil action or proceeding for money damages by reason of the same subject matter against the employee whose act or omission gave rise to the claim or against the estate of such employee. Any other civil action or proceeding for money damages arising out of or relating to the same subject matter against the employee or the employee's estate is precluded without regard to when the act or omission occurred.28 U.S.C. § 2679 (b)(1).
However, the aforementioned provision does not apply to a civil action against an employee of the Government which is brought for a violation of the Constitution of the United States. Id. § 2679(b)(2)(A).
Plaintiffs correctly note that the Westfall Act keeps the United States and its employees distinct in constitutional tort cases. Sterling v. United States, 85 F.3d 1225, 1228 (7th Cir. 1996). Thus, while the Westfall Act precludes personal liability against a federal employee for state law torts, the statute expressly precludes immunity for a Bivens claim. See 28 U.S.C. § 2679 (b)(2)(A). Applicability of immunity under the Act is evaluated on a count by count basis, rather than against the complaint as a whole, which serves to maintain the distinction between liability of the United States and its employees. See Anderson v. Government of the Virgin Islands, 199 F. Supp.2d 269 (D.V.I. 2002).
In the instant case, Plaintiffs assert both state law tort claims and claims for constitutional violations. Under the Westfall Act the FTCA provides Plaintiffs' sole remedy for the state law violations, and given that Plaintiffs' claims against the United States have already been dismissed, the Westfall Act will likewise compel dismissal of the state law claims against the Federal Defendants. However, the Act requires certification by the Attorney General that the defendant-employee was acting within the scope of his employment at the time of the tortious incident. Id. § 2679(d)(1). No such certification has been filed into the record for movers in this case.
Unlike the "judgment bar" provision of the FTCA, no judgment is needed for application of the Westfall Act.
Accordingly, the motion to dismiss the state law claims against the Federal Defendants based upon the Westfall Act is DENIED pending the appropriate certifications being filed into the record. The Federal Defendants can summarily move for dismissal of the state law claims pursuant to the Westfall Act when their certifications are filed.
C. Prescription
Defendants point out that federal civil rights claims are subject to state statutes of limitation, in this case one year pursuant to La. Civ. Code article 3492. The search of Plaintiffs' home took place on November 18, 1998, yet the Federal Defendants were not made parties to the suit until late 2002. Accordingly, Defendants argue that Plaintiffs' claims are prescribed.
Federal courts borrow state statutes of limitation for federal civil rights claims and the state's tolling provisions. Pastor v. Foti, 2002 WL 550983 (E.D. La. Apr. 11, 2002) (McNamara, J.) (citing Burge v. St. Tammany, 996 F.2d 786, 788 (5th Cir. 1993)). Under Louisiana Civil Code article 3492, the interruption of prescription against one joint tortfeasor is effective against all joint tortfeasors. The Federal Defendants are alleged to have acted in concert with those defendants who were sued within one year of the incident. Accordingly, the motion to dismiss based upon prescription is DENIED.
D. Qualified Immunity
The Federal Defendants argue that the allegations in Plaintiffs' complaint are too broad, indefinite, or conclusory to overcome the defense of qualified immunity. Defendants argue that the allegations fail to show how they were personally involved in the alleged violations. Further, even if the allegations in the complaint are eventually proven, Plaintiffs have not established a Fourth Amendment violation.
The Federal Defendants point out that the complaint makes reference to various provisions of the Constitution that do not apply in this case. The Court agrees that insofar as the Federal Defendants face liability for any constitutional violation, it would only be under the Fourth Amendment.
In opposition, Plaintiffs argue that the complaint is sufficient to withstand a motion to dismiss even though it does not allege the step by step involvement of each Federal Defendant as would be necessary to prove their case at trial or even to defend against a motion for summary judgment. Further, Plaintiffs concede that Daryl Lyons should be dismissed because the complaint alleges no conduct whatsoever on his part.
To evaluate the qualified immunity defense, the Court must first determine whether Plaintiffs' allegations, if true, establish a constitutional violation. In re Foust, 310 F.3d 849, ___ (5th Cir. 2002) (citing Hope v. Pelzer, ___ U.S. ___, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002)). If the conduct was "constitutionally impermissible" then the next question is whether the conduct violated a clearly established right of which a reasonable person would have known. Id. In the context of qualified immunity, a right is clearly established if the contours of the right are sufficiently clear that a reasonable official would understand that what he is doing violates that right. Id. (quoting Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)).
Plaintiffs complain that their Fourth Amendment rights were violated because their home was searched without probable cause and perhaps without a facially valid warrant. Assuming arguendo the warrant was facially valid, they argue that the warrant was nevertheless invalid as Defendants procured it based upon stale information. They also allege excessive force in the execution of the warrant.
Plaintiffs have argued that the warrant was facially invalid because the supporting affidavit does not link their home address to the drug suspect in any way. The Fifth Circuit has previously recognized that an affidavit, which fails to show a nexus between the items sought and the actual location to be searched, would not defeat the objective good faith of the officers involved, at least in the context of a motion to suppress. See United States v. Merida, 765 F.2d 1205, 1214 (5th Cir. 1985). The Fifth Circuit concluded under the facts of that case that the officers should not be expected to second-guess the magistrate who had issued the warrant. Id.
Procurement of the Warrant
Proof of negligence or mistake in the procurement of a warrant will not overcome the qualified immunity defense to an alleged Fourth Amendment violation. Fullard v. City of Philadelphia, 1996 WL 195388 (Apr. 22, 1996) (citing Franks v. Delaware, 438 U.S. 154 (1978)). Only a deliberate falsehood or a statement made with reckless disregard for the truth will. Id.
Defendants Levis and Breedy are the only two Federal Defendants alleged to have participated in the procurement of the warrant at issue. Hitchins and Scallan are not alleged to have participated in the procurement of the warrant. The allegation is that the officers either intentionally or with reckless disregard for the truth failed to ascertain that the suspect they were seeking had not resided at Plaintiffs' address for over six years. Rec. Doc. 151 at ¶ 20. While Plaintiffs' allegations are sparse to say the least, if accepted as true, they suffice to establish a Fourth Amendment violation. Moreover, if the officers did in fact intentionally or recklessly provide false information to the magistrate issuing the warrant, then any reasonable officer would have known that a search conducted pursuant to that warrant would be unlawful. Accordingly, the motion to dismiss the Fourth Amendment claim against Levis and Breedy based upon qualified immunity is DENIED.
The Court is construing Plaintiffs' complaint very liberally at this stage because only the sufficiency of the allegations in the complaint is being tested at this time. For instance, the Federal Defendants point out that the complaint does not sufficiently allege the specific personal involvement of each defendant in the procurement and execution of the warrant. While the allegations might withstand attack on the basis of a motion to dismiss, at the summary judgment stage Plaintiffs must be able to point to evidence sufficient to create an issue of fact as to the specific personal involvement of each defendant so as to overcome the qualified immunity defense.
Execution of the Warrant
The execution of a search warrant necessarily involves some degree of force. United States v. Branch, 91 F.3d 699, 719 (5th Cir. 1996). The Fourth Amendment requires that officers act reasonably when securing occupants during a search. Turner v. Sheriff of Marion County, 94 F. Supp.2d 966, 993 (S.D. Ind. 2000) (citing Ramirez, 523 U.S. at 71, 188 S.Ct. at 996; United States v. Singer, 943 F.2d 758 (7th Cir. 1991)). Reasonableness is judged from the perspective of the reasonable officer on the scene rather than with "the 20/20 vision of hindsight."Id. (citing Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). The officers executing the warrant have an interest in minimizing the risk of harm to themselves, and the execution of a warrant to search for narcotics is the kind of transaction that may give rise to sudden violence or efforts to destroy evidence. Michigan v. Summers, 452 U.S. 692, 702, 101 S.Ct. 2587, 2594, 69 L.Ed.2d 340 (1981).In Heitschmidt v. City of Houston, the Fifth Circuit held that officers can cross the line into a Fourth Amendment violation when detention pursuant to a search goes too far. 161 F.3d 834 (5th Cir. 1998). In that case, plaintiff was detained for over four hours in painful restraints without access to a bathroom. The detention took place outside of his home in the street where he claimed to have been pushed onto the trunk of a car. Id. at 838. The Fifth Circuit held that plaintiff's allegations could overcome the qualified immunity defense as the alleged detention was unreasonably intrusive and unjustified under the circumstances. Id.
Generally speaking, however, one lawfully detained pursuant to the execution of a search warrant has no right to use the bathroom facilities on demand or to otherwise move about freely so as to have ready access to contraband or a weapon. See Hunter v. Namanny, 219 F.3d 825, 831 (8th Cir. 2000). Even where an occupant's dignity is severely compromised or embarrassed by what transpires during the search, qualified immunity will prevail as long as the officer's actions were reasonable under the circumstances. Id.
Hitchins and Scallan are the only two Federal Defendants alleged to have participated in the execution of the warrant. Plaintiffs complain that the officers on the scene dragged them from their beds, shined flashlights in their faces, pointed weapons at them, denied them access to the bathroom, and handcuffed them. The complaint shows, however, that the entire ordeal was only two hours in duration and after only "minutes" of pleading, Ms. Michalik was permitted to attend to her toddler daughter. After only twenty minutes Defendants allowed a family member to take the Michalik toddler from the scene.
Based upon these allegations the Court concludes that Hitchins and Scallan are entitled to qualified immunity on the excessive force claim for their actions during the execution of the warrant. The officers arrived on the scene to execute a search warrant for drugs on the premises. The actions the officers took were not unreasonable in light of the potential security risks inherent in such a situation. It was mere minutes until they allowed Mrs. Michalik to attend to her daughter and only 20 minutes later they released the child to her aunt. The entire matter lasted only two hours. The allegations contained in the complaint are insufficient as a matter of law to overcome the qualified immunity defense for Hitchins and Scallan. Because Hitchins and Scallan did not participate in procuring the warrant, they are entitled to qualified immunity with respect to all of the Fourth Amendment Bivens claims. Thus, the motion is GRANTED with respect to Hitchens and Scallan on the Fourth Amendment claims based upon qualified immunity.
Levis and Breedy did not participate in executing the warrant.
Supervisor Liability
Drasutis is alleged to have supervised the Federal Defendants and no direct participation in the procurement or execution of the warrant is alleged. Plaintiffs claim that Drasutis failed to establish proper procedures and failed to adequately train his subordinates. Plaintiffs allege that these failures led directly to the deprivation of their constitutional rights.
Respondeat superior is not a viable theory of Bivens liability. Capozzi v. Department of Transp., 135 F. Supp.2d 87, 98 (D. Mass. 2001) (citingRuiz v. Riley, 209 F.3d 24 (1st Cir. 2000)). Rather, a supervisor is liable only for his own acts and omissions and faces no vicarious liability for the acts of his subordinates. See id. There is supervisory liability only if (1) there is subordinate liability, and (2) the supervisor's act or omission is affirmatively linked to the constitutional violation caused by the subordinate. Id. (citing Seekamp v. Michaud, 109 F.3d 802, 808 (1st Cir. 1997)).
The Court has already concluded that Plaintiffs allege a Fourth Amendment claim against Levis and Breedy, thereby satisfying the first prong of supervisor liability. As for the second prong, Plaintiff's allege that Drasutis's failure to train directly led to the violation of their Fourth Amendment rights. Rec. Doc. 151, at ¶ 45. The claim against Drasutis is evaluated at this stage only for the sufficiency of the allegations in the complaint, and the Court therefore concludes that the claims against Drasutis can withstand the instant motion to dismiss. The viability of the claim against Drasutis can better be evaluated via a motion for summary judgment. Thus, the motion to dismiss is DENIED insofar as Drasutis is concerned.
E. Miscellaneous Civil Rights Statutes
The Federal Defendants point out that Plaintiffs' complaint makes reference to various civil rights statutes that have no applicability to them. Specifically, section 1983 only applies to state actors, Robison v. Wichita Falls North Tex. Comm. Action Corp., 507 F.2d 245 (5th Cir. 1975), and sections 1985(3) and 1986 require an allegation as to racial or other class-based discriminatory intent, Save Our Cemeteries, Inc. v. Archdiocese, Inc., 568 F.2d 1074 (5th Cir. 1978).
Plaintiffs did not oppose these arguments in their memorandum. The Court agrees with the Federal Defendants' contentions as to these other claims. Thus, the motion to dismiss is GRANTED insofar as the claims under 42 U.S.C. § 1983, 1985(3), 1986 are concerned.
Accordingly;
IT IS ORDERED that the Motion to Dismiss of Individual Federal Defendants (Rec. Doc. 159) filed by Arthur Hitchins, John Scallan, George Breedy, Eric Levis, David Drasutis, and Daryl Lyons should be and is hereby GRANTED IN PART AND DENIED IN PART as follows:
IT IS ORDERED that all claims against Daryl Lyons are DISMISSED; IT IS FURTHER ORDERED that the official capacity claims against Arthur Hitchins, John Scallan, George Breedy, Eric Levis, and David Drasutis are DISMISSED; IT IS FURTHER ORDERED that all federal claims against Arthur Hitchins and John Scallan are DISMISSED; IT IS FURTHER ORDERED that all federal claims against Eric Levis and George Breedy, except those Fourth Amendment claims arising out of procurement of the warrant, are DISMISSED; IT IS FURTHER ORDERED that the motion is DENIED in all other respects.