Glickman v. United States, 83 Civ. 2458.

• Decision Date: 30 December 1985
• Docket Number: No. 83 Civ. 2458.,83 Civ. 2458.
• Parties: Stanley Milton GLICKMAN, Plaintiff, v. UNITED STATES of America, Sidney Gottlieb, in his individual and in his official capacities, Richard Helms, in his individual and in his official capacities, John Does, unknown agents of the Central Intelligence Agency, Defendants.
• Court: U.S. District Court — Southern District of New York

626 F. Supp. 171

Stanley Milton GLICKMAN, Plaintiff, v. UNITED STATES of America, Sidney Gottlieb, in his individual and in his official capacities, Richard Helms, in his individual and in his official capacities, John Does, unknown agents of the Central Intelligence Agency, Defendants.

No. 83 Civ. 2458.

United States District Court, S.D. New York.

December 30, 1985.

James I. Meyerson, New York City, for plaintiff.

Jane E. Booth, U.S. Atty's. Office, for defendants.

OPINION

GRIESA, District Judge.

Plaintiff Stanley Glickman brings this lawsuit against defendant United States of America and against defendants Richard Helms and Sidney Gottlieb, in their individual capacities and in their official capacities as former officials of the CIA. Also named in the complaint are John Doe defendants, unknown agents of the CIA. Plaintiff seeks to recover for an alleged administration of lysergic acid diethylanide ("LSD") to plaintiff and a subsequent failure to treat plaintiff or to inform him of the drugging. Plaintiff has set forth several common law tort claims against the United States, and several Bivens claims (causes of action against officials implied by the courts to remedy violations of constitutional rights) against the individual defendants. Jurisdiction of this court is invoked pursuant to 28 U.S.C. § 1346(b) (jurisdiction for tort claims against the United States) and 28 U.S.C. § 1331 (federal question jurisdiction).

The United States moves under Fed.R. Civ.P. 12(b)(1) to dismiss the complaint as against it for lack of subject matter jurisdiction, or, in the alternative, for summary judgment pursuant to Fed.R.Civ.P. 56. Helms and Gottlieb move under Fed.R. Civ.P. 12(b)(2) and (3) to dismiss the complaint as against them for lack of jurisdiction over the person or for improper venue.

The motions are denied. As will be described, the denial of certain of the motions is occasioned by an inadequate factual record at the present time. As to these motions, their denial is without prejudice to renewal at a later time.

The complaint alleges that the CIA had a program to test experimental drugs on American citizens without their knowledge. It is alleged that both defendant Gottlieb and defendant Helms were in the CIA and were involved in the planning and execution of this program. The complaint further alleges that in October 1952 plaintiff was pursuing a promising career as an artist in Paris, having had one of his works accepted for exhibition at the Metropolitan Museum of Art in New York City. It is alleged that one evening he was drinking coffee at The Select Cafe, and encountered a group of Americans who insisted on buying him a drink, despite his repeated refusals. The complaint alleges that plaintiff believes that the Americans were agents of the United States Government, and that the group may have included defendant Gottlieb. It is alleged that plaintiff finally agreed to have a cordial, which was obtained for him by one of the Americans. The complaint alleges that it is believed that the persons who gave plaintiff the drink inserted in it the drug L.S.D. The complaint alleges that surreptitious drugging of plaintiff was done as part of the CIA program to test, on unwitting persons, the effects of L.S.D. as a potential weapon, a program initially named "Bluebird," later renamed "Artichoke," and ultimately named "MKULTRA."

It is alleged that this program was designed and set in operation from the United States, specifically Washington, D.C. and New York, New York.

According to the complaint, following plaintiff's taking the drug, plaintiff experienced various distortions of his mind, including a sense of unusual powers, a warping of distance, a melding of colors, and difficulty in speech. The complaint alleges that plaintiff was taken to a hospital in Paris by agents of the United States Government, where he was given drug treatment, including experimental electroshock treatment. The complaint alleges that plaintiff has never fully recovered from this experience, continues to suffer severe mental distress, and is unable to pursue his chosen occupation.

According to the complaint, the United States Government has continued to hide the fact of its wrongdoing to plaintiff, and has never offered to assist or treat him.

The complaint alleges nine causes of action. The first four are against the United States. These are under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. The first alleges negligence, the second invasion of privacy, the third intentional infliction of emotional distress, and the fourth deceit.

The remaining causes of action are against Gottlieb, Helms and unknown United States Government agents. They are brought under various provisions of the United States constitution, pursuant to the decision in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The fifth cause of action alleges violation of the right of privacy guaranteed by the Fourth Amendment; the sixth alleges violation of the First Amendment rights of free speech and association; the seventh alleges unreasonable search and seizure in violation of the Fourth Amendment; the eighth alleges deprivation of life, liberty and property without due process of law, in violation of the Fifth Amendment; and the ninth alleges cruel and unusual punishment in violation of the Eighth Amendment.

The complaint requests compensatory and punitive damages, and also a declaratory judgment.

One set of motions is made by the United States. Another set of motions is made by Gottlieb and Helms.

Motions by the United States

Scope of Administrative Claim.

Under the Federal Tort Claims Act ("FTCA"), no claim may be sued upon that was not presented first at the appropriate agency.

Plaintiff submitted an administrative claim to the CIA dated December 22, 1981. The claim stated:

Upon information and belief, on or about the above dates 10/1/52-11/30/52 these unknown agents of the Central Intelligence Agency administered and caused to be administered to me unknown quantities of L.S.D., or a like substance, without my knowledge or consent, and further, without my consent, administered to me a series of electric shocks.

The United States contends that this claim relates only to the tort of battery, and that the claim does not assert the theories relied upon in the causes of action in the complaint. According to the Government, this means that the case against the Government must be dismissed, because the United States has not waived its sovereign immunity for batteries committed before 1974. 28 U.S.C. § 2680(h). The statute was amended in 1974 to allow claims for certain types of batteries, but as of 1952 there was a blanket exception for this type of tort.

The United States reads the administrative claim too narrowly. The Fifth Circuit has stated that an administrative claim is sufficient if it "brings to the Government's attention facts sufficient to enable it thoroughly to investigate its potential liability and to conduct settlement negotiations with the claimant," and that if legal theories are implicit in what is stated in an administrative claim, those theories can be pursued in a litigation. Rise v. U.S., 630 F.2d 1068, 1071, (5th Cir.1980).

In the present case, plaintiff's administrative claim is a sufficient basis for the complaint in this lawsuit against the United States. Although the literal language of the administrative claim does not expressly speak of a covert CIA plan to infringe the rights of citizens, or of the various legal theories relied upon in the complaint, such claims are necessarily implicit in what is stated in the administrative claim.

It would be particularly inappropriate in the present case to take a narrow view of the administrative claim, since what is alleged is a highly unusual secret plan to experiment with unwary citizens and to cover the tracks of the alleged agency actions. See Sims v. CIA, 642 F.2d 562 (D.C. Cir.1980). Whatever the facts are, they are in the control of defendants. When the administrative claim was presented to the CIA, it was sufficient to allow the CIA to investigate the matter and evaluate the merits of the claim. No more detailed administrative claim was required.

The "Foreign Country" Exception.

The FTCA excludes liability for "any claim arising in a foreign country." 28 U.S.C. § 2680(k). This exception rests on a congressional unwillingness to subject determinations of United States Government liability to foreign law. United States v. Spelar, 338 U.S. 217, 221, 70 S.Ct. 10, 12, 94 L.Ed. 3 (1949). Under the FTCA, liability is determined "in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b). It has been said, as well, that the provision rests on the idea that the United States usually should not be burdened with the difficulty of obtaining witnesses and evidence in foreign countries. Burna v. United States, 240 F.2d 720, 722 (4th Cir.1957).

Defendant contends that plaintiff's claims against the United States arose in France, where he claims to have been drugged and electro-shocked. Although the briefs submitted do not discuss the legal standard for determining where the claim arose, and the decisions interpreting § 2680(k) are few, see Sami v. United States, 617 F.2d 755, 762 (D.C.Cir.1979), the following rule emerges from the cases. For purposes of the FTCA, a claim arises where the tortious act or omission occurs, not where the injury is felt. A claim arises in the United States, and thus is not barred by § 2680(k), where the act or omission occurs in the United States but the injury is sustained in a foreign country. See, e.g., Beattie v. United States, 756 F.2d 91, 96 (D.D.C.1985); Sami, supra p. 762; Leaf v. United States, 588 F.2d 733 (9th Cir.1978).

The CIA program to administer drugs to unwitting persons obviously originated in the United States, even though certain...