Farmer v. Perrill
| Decision Date | 26 December 2001 |
| Docket Number | No. 00-1396,00-1396 |
| Citation | 275 F.3d 958 |
| Parties | (10th Cir. 2001) DEE DEIDRE FARMER, Plaintiff-Appellee, v. WILLIAM PERRILL, Warden; KEVIN UDIS, Psychologist, Defendants-Appellants, and A. F. BEELER, Sr. Deputy Assistant Director of the Health Services Division; R. ROSE, Deputy Regional Director; ROBERT L. KRICK, Psychologist, Defendants |
| Court | U.S. Court of Appeals — Tenth Circuit |
Appeal from the United States District Court for the District of Colorado (D.C. No. 93-D-1253) Kathleen L. Torres, Assistant U.S. Attorney (John W. Suthers, United States Attorney, Michael E. Hegarty, Assistant U.S. Attorney, with her on the briefs) of the Office of the United States Attorney, Denver, Colorado, for Defendants-Appellants.
Antony M. Noble of Denver, Colorado (John S. Pfeiffer, of Castle Rock, Colorado, with him on the brief) for Plaintiff-Appellee.
Before KELLY and HOLLOWAY, Circuit Judges, and SHADUR, District Judge.*
Dee Farmer ("Farmer"),1 a transsexual prison inmate, has sued Warden William Perrill of the Federal Correctional Institution in Englewood, Colorado ("Englewood") and Kevin Udis, a psychologist at Englewood, each in his individual capacity, for $1 million in damages arising out of defendants' failure to provide her with any treatment for transsexualism while she was incarcerated.2 Defendants now take an interlocutory appeal from the district court's denial of their motions for summary judgment and for reconsideration. They assert two grounds for reversal: (1) Farmer's claims are barred by 28 U.S.C. 2676,3 and (2) defendants are entitled to qualified immunity because they did not violate clearly established law.
Because Farmer had earlier sustained an adverse judgment in an action brought by her under the Federal Tort Claims Act ("FTCA") and based on the same alleged conduct, the Bivens claims that are the subject of this appeal are barred by Section 2676. We therefore need not address the qualified immunity issue, and the orders of the district court are REVERSED under the Section 2676 equivalent of claim preclusion.
In November 1993 Farmer filed this action under the auspices of Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971),4 alleging that numerous prison employees and officials had violated her constitutional rights by failing to provide her with treatment for transsexualism between March and June 1993 while she was incarcerated at Englewood. (App. 301-20) Defendants filed a motion to dismiss or for summary judgment, asserting among other things a qualified immunity defense. (App. 44-47) On January 7, 1994 a magistrate judge recommended that summary judgment be denied. (App. 226-33) Over 5-1/2 years later the district court accepted the recommendation of the magistrate judge and denied defendants' motion, finding that under clearly established law a transsexual is entitled to some form of medical treatment and that a disputed issue of material fact existed as to whether Farmer was actually denied treatment. (App. 295-96)
Meanwhile judgment had just been entered in a separate lawsuit brought by Farmer during the pendency of defendants' summary judgment motion in this action (Farmer v. United States, No. 94-D-1220 (D. Colo. July 15, 1999)). Farmer had sued under the FTCA (Sections 1346(b) and 2671-2680), seeking damages for the same alleged failure to treat her transsexualism during the same time period in the same correctional facility.5 (Aplt. App. 346-66) That action was dismissed with prejudice by the district court on July 15, 1999 for failure to prosecute. (Aplt. App. 343-44) Defendants then moved for reconsideration of the order denying their summary judgment motion in this action, invoking Section 2676 and also asking for reconsideration of the denial of qualified immunity. (Aplt. App. 321-42)
As to the first of those contentions, Section 2676 precludes a claimant from maintaining any action against an individual federal employee where judgment has already been entered in an action against the United States involving "the same subject matter." As Section 2676 specifies:
The judgment in an action under section 1346(b) of this title 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.
On August 24, 2000 the district court denied defendants' motion for reconsideration on the premise that Farmer's Bivens claims against defendants in their individual capacities were not foreclosed by the dismissal of her related FTCA claim because, in the court's view, the FTCA dismissal barred claims against defendants only in their official capacities. (App. 397) Additionally the district court rejected the arguments for reconsideration of the denial of qualified immunity. (App. 399) This appeal followed.
We have jurisdiction pursuant to Section 1291 and the collateral order doctrine to review the district court's August 24, 2000 order (Johnson v. Jones, 515 U.S. 304, 313, 317 (1995); Benefield v. McDowall, 241 F.3d 1267, 1270 (10th Cir. 2001); Johnson v. Martin, 195 F.3d 1208, 1213-15 (10th Cir. 1999)). To be appealable under the collateral order doctrine, a district court decision "must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment" (Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949)).
We need not decide on which side of the dividing line identified in Johnson v. Jones, 515 U.S. at 313-17 the district court's qualified immunity ruling falls--see, e.g., Medina v. Cram, 252 F.3d 1124, 1130 (10th Cir. 2001). That is so because all three prongs of the collateral order doctrine are plainly satisfied by the district court's holding that Section 2676 does not bar Farmer's Bivens claim.
First, the Section 2676 ruling is conclusive. Second, it is both separate from the merits of Farmer's claims and vitally important, for if unreversed it will require defendants to proceed with discovery and trial. Finally and relatedly, it is effectively unreviewable on appeal. Section 2676 bars "any action" against federal employees after a judgment in an FTCA case involving "the same subject matter," and as such it confers immunity from further suit rather than just from liability. It has consistently been held in the qualified immunity context that to require defendants to go through trial effectively destroys the protection to which they are entitled, even if they are later vindicated at trial, by having forced them to endure the costs of litigation and the burdens of the discovery process (Mitchell v. Forsyth, 472 U.S. 511, 526 (1985); Holland v. Harrington, 268 F.3d 1179, 1185 (10th Cir. 2001)). And that is why the "effective unreviewability" standard is met where pure questions of law, rather than mere factual disputes, are involved (Johnson v. Jones, 515 U.S. at 317; Benefield, 241 F.3d at 1270). Just so, the identical analysis applies to the current Section 2676 issue.6
We review de novo a district court's legal conclusions under the FTCA, such as the Section 2676 holding leading to this appeal (Engle v. Mecke, 24 F.3d 133, 135 (10th Cir. 1994)). Although Farmer argues that an order denying a motion for reconsideration is reviewed for an abuse of discretion (see, e.g., Matosantos Commercial Corp. v. Applebee's Int'l, Inc., 245 F.3d 1203, 1213 (10th Cir. 2001)), even under that standard the district court's Section 2676 holding must be reversed because it was based on an "erroneous conclusion of law" (Shaw v. AAA Eng'g & Drafting, Inc., 213 F.3d 538, 542 (10th Cir. 2000)).
By its terms Section 2676 makes a final judgment on an FTCA claim preclusive against any Bivens action based on the same underlying complaint. As Engle, 24 F.3d at 135 (citations omitted) teaches succinctly:
When a federal law enforcement officer commits an intentional tort, the victim has two avenues of redress: 1) he may bring a Bivens claim against the individual officer based on the constitutional violation, or 2) he may bring a common law tort action against the United States pursuant to the FTCA. These are separate and distinct causes of action arising out of the same transaction. A decision to sue the government, however, affects the availability of a Bivens action against the federal officer. Although the plaintiff may elect initially to bring his action against either defendant, a judgment against the United States under the FTCA constitutes "a complete bar to any action by the claimant, by reason of the same subject matter, against the employee...whose act or omission gave rise to the claim."
Here Farmer's FTCA case clearly involved the "same subject matter" as the Bivens claims at issue in this appeal: the alleged failure of the prison officials to provide treatment for transsexualism. Fed. R. Civ. P. ("Rule") 41(b) deals explicitly with the dismissal of that FTCA case for failure to prosecute:
For failure of the plaintiff to prosecute...a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision...operates as an adjudication upon the merits.
And the district court's order dismissing Farmer's FTCA claim on that ground left no doubt: It expressly stated the dismissal was with prejudice. (Aplt. App. 343) Hence the FTCA judgment against Farmer bars her Bivens claims as a matter of law.
Despite the plain language of Section 2676 in that respect, the district court considered that applying the Section 2676 bar to Farmer's Bivens suit "would lead the Court to deny the Plaintiff her Bivens claims against the Defendants in their...
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