Day v. Massachusetts Air Nat. Guard, Civ.A. 96-30126-MAP.

Citation994 F.Supp. 72
Decision Date12 February 1998
Docket NumberNo. Civ.A. 96-30126-MAP.,Civ.A. 96-30126-MAP.
PartiesAndrew DAY v. MASSACHUSETTS AIR NATIONAL GUARD, et al.
CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts

Mark D. Mason, Daniel E. Bruso, Cooley, Shrair, P.C., Springfield, MA, for Andrew Day.

Cynthia J. Gagne, H. Gregory Williams, Springfield, MA, for Massachusetts Air Nat. Guard.

Karen L. Goodwin, U.S. Attys. Office, Springfield, MA, for Richard Duquette and U.S. Dept. of the Air Force.

John A. Odierna, Odierna & Beaumier, Springfield, MA, for James Towle.

MEMORANDUM REGARDING DEFENDANTS' MOTIONS TO DISMISS; PLAINTIFF'S MOTION FOR RELIEF AND DEFENDANT TOWLE'S MOTION TO ORDER REVIEW

(Docket Nos. 14, 23-1, 23-2, 27, 31 & 50)

PONSOR, District Judge.

I. INTRODUCTION

The plaintiff, Andrew Day ("Day"), has brought this sixteen-count complaint against the Massachusetts Air National Guard ("MANG"), the United States Air Force ("USAF"), James Duclos ("Duclos"), Richard Duquette ("Duquette"), James Towle ("Towle") Duane Caton ("Caton"), James Balisle ("Balisle") and eight unnamed individuals ("Does 1-8"), in their individual and official capacities as members of the USAF. The complaint arises from an attack suffered by Day in the early morning of July 22, 1994, while he was serving with the 104th Fighter Group at Volk Field in Wisconsin.

Based on the attack, and the events that followed, Day asserts civil rights claims pursuant to Mass.Gen. Laws ch. 12, § 11I and 42 U.S.C. § 1983. His complaint also includes counts for assault and battery, intentional and negligent infliction of emotional distress, negligent supervision, and negligent enlistment and commissioning against the defendants individually and against the USAF and the MANG.

On November 22, 1996, this court substituted the United States as the defendant on the state law claims against Balisle, Duclos and Duquette, following certification that these defendants were acting within the scope of their employment, pursuant to 28 U.S.C. § 2679(d)(1) (1994). For the reasons set forth below, the court declined to substitute the United States for Towle.1

Pursuant to Fed.R.Civ.P. 12(b)(1) and (6), the defendants have moved to dismiss all claims for lack of subject matter jurisdiction. Towle also asks the court to reconsider its decision not to substitute the United States for him. The plaintiff opposes the defendants' Motions to Dismiss and, in addition, asks the court to reconsider its decision to substitute the United States for Balisle, Duclos and Duquette on the state law claims.

For the reasons set forth in detail below, the court will DENY Towle's motion to substitute the United States for him, DENY the plaintiff's motion for relief from the court's Order substituting the United States for Balisle, Duclos and Duquette, ALLOW the Motions to Dismiss of the MANG, USAF, Towle, and Duquette, and dismiss the complaint against Caton and the "John Doe" defendants, sua sponte.

In summary, the plaintiff's claims against the USAF, MANG and the individual defendants are barred by the Feres doctrine which precludes government and individual liability for injuries arising "incident to military service." Feres v. United States, 340 U.S. 135, 146, 71 S.Ct. 153, 95 L.Ed. 152 (1950).

II. FACTS

In considering the defendants' Motions to Dismiss, the court must view the facts, and all reasonable inferences flowing from them, in the light most favorable to the plaintiff. Mulloy v. United States, 884 F.Supp. 622, 626 (D.Mass.1995).

At the time of the alleged incident Day was an enlisted airman in the MANG, a Senior Airman/E-4, assigned to the Aerospace Ground Equipment ("AGE") section of the 104th Fighter Group ("104th"), a unit of the MANG.

In July 1994, Balisle, a non-commissioned officer and enlisted member of the MANG 104th, temporarily assigned Day to the Munitions and Weapons Section of the 104th. Day alleges that when Balisle made this temporary assignment, he stated that the Munitions and Weapons Section would "rape" Day.

During July 1994, the 104th, including Day, performed an Operation Readiness Inspection ("ORI") at Volk Field in Wisconsin. Throughout the ORI, Day observed other members of the 104th being subjected to hazing. In one incident, Day observed airmen rip the clothing off another member of the 104th, fasten the naked victim to a bed with duct tape and place him outside for public ridicule. The officers and non-commissioned officers in charge of his section, including Duclos, failed or neglected to stop this attack. Additionally, throughout the ORI, other members of the 104th, including Duquette and Towle, threatened that Day would be the next hazing victim.

On July 21, 1994, Day was released from duty and attended a party at the Volk Field Base Club with other members of the 104th. Day left the party at 1:00 a.m. on July 22, 1994, and returned to his assigned barracks to sleep. Prior to falling asleep, Duquette allegedly warned Day that he would be attacked.

Later that night, Day was awakened, forcibly restrained and carried outside by several individuals, including Towle and Does 1-8. Once outside, Towle and Does 1-8 removed Day's underclothes and forced him to lie on a bed that had been set up outside the barracks. With Day's knees on the ground, Towle and Does 1-8 poured an unknown liquid between Day's buttocks. Towle and Does 1-8 next took a traffic cone and forcibly inserted the cone between Day's buttocks. Day attempted to resist the attack, but was told that his resistance would only make his situation worse.

While Towle and Does 1-8 continued their attack with the traffic cone, Caton took photographs and otherwise aided the attack on Day. Although he did not actively participate, Duquette was present during the attack on Day.

Following the attack, Day, though in shock, managed to notify the proper authorities in the chain of command in both the 104th, the MANG and the USAF. According to Day, neither the MANG, nor the USAF conducted a reasonable investigation of the attack. Further, Day alleges that none of the individuals involved in the attack was subsequently prosecuted or disciplined by the MANG or the USAF. Day avers that the MANG and the USAF failed to initiate a referral of Day to proper medical treatment or counseling.

At some point after the attack, Day attempted to file an administrative claim against the MANG and the USAF for the damages he suffered. In response, Day alleges that members of the 104th and the MANG thwarted his efforts by refusing to provide him with the proper forms and attempting to intimidate or coerce him to drop his claims.

On June 28, 1995, Day filed a claim pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671 et seq., for the damages he suffered as a consequence of the July 22, 1994 attack at Volk Field. On February 26, 1996, the MANG and USAF denied Day's FTCA claim. Day then instituted this action within the thirty-day limitation period.

III. DISCUSSION
A. THE WESTFALL ACT: SUBSTITUTION OF PARTIES

The Westfall Act, also known as the Federal Employees Liability Reform and Tort Compensation Act, provides federal employees immunity from liability on state law tort claims for acts committed within the scope of their office or employment. 28 U.S.C. § 2679. The purpose of the Westfall Act is to assure that federal employees will not be adversely affected by fear of personal liability while performing their duties as civil servants. Melo v. Hafer, 13 F.3d 736, 744 (3d Cir.1994). By requiring substitution of the United States as a defendant, where an individual defendant was acting within the scope of his or her employment, the Westfall Act makes the Federal Tort Claims Act the sole remedial mechanism for negligence or misconduct by a federal employee. Id.

The Westfall Act vests the Attorney General for the United States or her designee with the power to certify that the challenged acts occurred within the scope of the employee's office or employment. 28 U.S.C. § 2679(d)(1)-(2). Where the Attorney General has refused to certify that an employee was acting within the scope of his or her office or employment, that individual may petition the court to certify scope of employment. 28 U.S.C. § 2679(d)(3). If certification occurs, a United States District Court will substitute the United States for an individual defendant-employee. 28 U.S.C. § 2679(d)(1).

To determine whether an employee acted within the scope of his or her office or employment, the court must look to the law of the state where the act or omission occurred. Cardozo v. Graham, 848 F.Supp. 5, 7 (D.Mass.1994) (citations omitted). Wisconsin follows the large majority of states in applying a two-tiered analysis to determine whether an act was done within the employee's scope of employment. First, the court must inquire whether the act "was part of or reasonably incidental to the duties [for which the individual] was hired...." Stephenson v. United States, 771 F.2d 1105, 1106 (7th Cir. 1985). Second, the court must consider whether the act was intended to benefit the employer. Id.

After some preliminaries, the United States Attorney for the District of Massachusetts, the Attorney General's designee, certified that, at the time of the alleged conduct, Balisle, Duclos, and Duquette were acting within the scope of their office or employment with the United States. Pursuant to 28 U.S.C. § 2679(d)(1), the court therefore substituted the United States as the defendant on the state law claims against Balisle, Duclos, and Duquette. Plaintiff has moved for reconsideration of this decision.

The United States Attorney did not, however, request substitution of the United States for Towle. Towle challenges the decision not to certify him under the Westfall Act, and has filed a motion asking this court to certify him as acting within his office or employment with the United States during the July 1994 attack on Day. The United States opposes Towle's motion.

Towle's motion and the...

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2 cases
  • Day v. Massachusetts Air Nat. Guard
    • United States
    • U.S. Court of Appeals — First Circuit
    • January 29, 1999
    ...L.Ed. 152 (1950), limiting suits for injuries arising "incident to military service." Id. at 146, 71 S.Ct. 153. Day v. Massachusetts Air Nat'l Guard, 994 F.Supp. 72 (D.Mass.1998). We affirm in part and reverse in Because the complaint was resolved on motions to dismiss, the facts are set fo......
  • Roig v. Puerto Rico Nat. Guard
    • United States
    • U.S. District Court — District of Puerto Rico
    • April 28, 1999
    ...for the First Circuit has not yet made any pronouncement of said expression, the phrase has been construed in Day v. Massachusetts Air Nat. Guard, 994 F.Supp. 72, 77 (D.Mass.1998) (adopting the Fifth Circuit's test in Kelly v. Panama Canal Commission, 26 F.3d 597, 600 (5th 3. In an unpublis......
1 books & journal articles
  • INCIDENT TO SERVICE: THE FERES DOCTRINE AND THE UNIFORM CODE OF MILITARY JUSTICE.
    • United States
    • Air Force Law Review No. 81, March 2020
    • March 22, 2020
    ...5A.08[5][s] (collecting two egregious hazing cases, Brown v. United States, 739 F.2d 362 (8th Cir. 1984); Day v. Mass. Air Nat'l Guard, 994 F. Supp. 72 (D. Mass 1998), aff'd in part, rev'd in part, 167 F.3d 678 (1st Cir. 1999)); Figley, supra note 48, at 23-24 & [110] Cf. Brown v United......

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