Harris v. U.S.

Citation422 F.3d 322
Decision Date02 September 2005
Docket NumberNo. 04-3520.,04-3520.
PartiesRonnie HARRIS, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

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422 F.3d 322
Ronnie HARRIS, Plaintiff-Appellant,
UNITED STATES of America, Defendant-Appellee.
No. 04-3520.
United States Court of Appeals, Sixth Circuit.
Argued: June 8, 2005.
Decided and Filed: September 2, 2005.

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ARGUED: Alani Golanski, Brooklyn, New York, for Appellant. Lynne H. Buck, Assistant United States Attorney, Cleveland, Ohio, for Appellee. ON BRIEF: Alani Golanski, Brooklyn, New York, for Appellant. Lynne H. Buck, Lori White Laisure, Assistant United States Attorney, Cleveland, Ohio, for Appellee.

Before: CLAY and SUTTON, Circuit Judges; OBERDORFER, District Judge.*

SUTTON, J., delivered the opinion of the court, in which OBERDORFER, D.J., joined.

CLAY, J. (pp. 337-40), delivered a separate opinion concurring in part and dissenting in part.


SUTTON, Circuit Judge.

Federal statutory law and constitutional law offer private citizens two avenues to recover damages for constitutional torts committed by employees of the federal government. A plaintiff may sue the employee directly for the constitutional violation under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). And a plaintiff may sue the government under the Federal Tort Claims Act (FTCA), on the condition that the "judgment in an [FTCA] action . . . 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.

In this case, Ronnie Harris attempted to use both avenues. The district court dismissed Harris's Bivens claims on statute-of-limitations grounds. And after a bench trial, the district court rejected Harris's FTCA claims on the merits. Because a reasonable factfinder could fairly conclude that Harris has failed to show that the individual defendants assaulted or maliciously prosecuted him under Ohio law, we affirm the district court's rejection of Harris's FTCA claims. And because that adjudication

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on the merits of Harris's FTCA claims bars further adjudication of Harris's Bivens claims against the individual defendants, we also affirm the court's dismissal of the Bivens claims.


Ronnie Harris, an Ohio resident, is a former Olympic and professional boxer, regarded as one of the best middleweights that the State has ever produced. His boxing career included a gold medal at the 1968 Olympics and victories over Sugar Ray Seales and future world champion Alan Minter.

On January 13, 1997, Harris arrived at Cleveland Hopkins Airport on Continental Airlines Flight 237 from Fort Lauderdale, Florida, where he had traveled to watch his daughter compete in a tennis tournament. He wore a jogging suit and tennis shoes and carried a briefcase but wore no overcoat.

Several federal agents in plain clothes—Debra Harrison, Henry O'Bryant, Raphael Caprez and James Gilchrist—were working at the airport on January 13, and one of their primary duties was to scan the airport for suspicious persons and activity. Because the Drug Enforcement Agency (DEA) has designated Fort Lauderdale as a "source city" for drug trafficking, Caprez and O'Bryant monitored the passengers of Flight 237 as they exited the aircraft.

Upon leaving the plane, Harris walked rapidly to the baggage claim area and immediately went outside the airport to look for his uncle, who was picking him up. O'Bryant noticed Harris because he wore a jogging suit yet carried a briefcase; because he was not carrying an overcoat despite the cold temperature; and because he walked rapidly through the airport while looking around—all of which O'Bryant, a 22-year law enforcement veteran, associated with a drug courier profile. O'Bryant (and eventually Caprez) followed Harris to the baggage claim area.

O'Bryant approached Harris outside the airport and, after identifying himself, asked to speak to him. Harris declined to speak with O'Bryant, and the two men walked away from each other. During this brief encounter, Caprez made eye contact with Harris but did not approach him or overhear the conversation. Harris remained outside the terminal; O'Bryant and Caprez returned to the airport. Harris then returned to the airport without his briefcase (which he had left with his uncle, who had now arrived), walked by the American Airlines baggage claim carousel and glanced at a green piece of luggage. Upon observing this, O'Bryant called for a dog to sniff the bag.

At this point, Harrison joined Caprez and began to observe Harris's actions. Harris retrieved his bag and, having guessed that Caprez was a DEA agent, approached him and said something like: "I don't appreciate you and your monkeys following me and if you keep it up I'll rip your head off." JA 130-31. Harrison, who overheard the comment, walked up to Harris from behind, tapped his shoulder and asked whether he had just threatened a police officer. Harris asked Harrison who she was; she responded that she was a "police" officer, JA 131, 371; and Harris pushed her in the chest, prompting Harrison to arrest him.

As the officers led Harris to the nearby DEA task force office, they "could feel him resisting and trying to get loose." JA 131. Once inside the office, they handcuffed him to a chair. O'Bryant entered the room and sought basic identification information from Harris. Harris generally was not cooperative during questioning. Gilchrist also entered the room with a drug-sniffing dog. The dog growled a few times during

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the few minutes that he was in the room, and Harris feared that the dog might "start biting [him]," JA 502. Harris also apparently "bladed" his body (a reference to assuming a sideways, "aggressive" "fight stance" toward the officers), told the officers that he was "fast" and told Harrison that she did not know "what he could have done to [her]." JA 132-33, 436-37. After Harris disclosed where he had left his briefcase, O'Bryant recovered it and discovered no contraband. The officers then took Harris to the police station, where they charged him with aggravated disorderly conduct, resisting arrest and assault on a police officer. An Ohio grand jury indicted Harris on the assault charge on March 4, 1997. And a jury later found him not guilty of that charge.

On the basis of these incidents, Harris filed a Bivens lawsuit against the individual task force officers on January 13, 1998. The officers moved to dismiss the lawsuit on grounds of defective process, a motion that the district court granted without prejudice on October 26, 1999. Harris appealed that dismissal to the Sixth Circuit, and we affirmed on March 26, 2001. See Harris v. City of Cleveland, 7 Fed.Appx. 452 (6th Cir.2001).

On March 22, 2002 (over a year after the district court dismissed the complaint but less than a year after this court's affirmance), Harris filed a new complaint against the individual federal defendants under the Federal Tort Claims Act and Bivens. Harris invoked the district court's jurisdiction under 28 U.S.C. § 2675(a), noting that he had filed an FTCA claim with the DEA on May 12, 1998, and that, because the agency had failed to act on the claim within six months, the claim was presumed denied.

On May 28, 2002, the United States filed a notice of substitution under 28 U.S.C. § 2679, which allows it to replace individual defendants with itself in defending FTCA claims. The individual defendants then filed motions to dismiss the Bivens claims for untimeliness (because they were filed over two years after the incidents), insufficient service of process and lack of personal jurisdiction. Harris responded that the Ohio Savings Statute, Ohio Rev. Code § 2305.19, gave him one year from the date of the Sixth Circuit's decision to file the lawsuit.

On October 23, 2002, the district court substituted the United States as the sole defendant for the FTCA claims, and dismissed the Bivens claims against all four individual defendants because they had been filed over one year after the district court's dismissal decision. On December 16, 2002, Harris filed a second amended complaint, this time solely against the United States, which asserted claims of assault, malicious prosecution, false arrest, false imprisonment, battery and abuse of process, all under the FTCA. After a bench trial, the district court ruled in favor of the United States on Harris's FTCA claims.


On appeal, Harris first argues that the district court mistakenly rejected his FTCA claims on the merits. The FTCA "waives, with certain limitations, [the federal government's] governmental immunity to suit in tort and permits suits on tort claims to be brought against the United States." S. Rep. 1400, 79th Cong., 2d Sess. 29 (1946). Under the FTCA, the United States is generally liable for the acts of its employees "in the same manner and to the same extent as a private individual under like circumstances," 28 U.S.C. § 2674, which means that it is liable for the payment of money damages according to the law of the place where the act or omission occurred, typically state law and

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actually Ohio law in this instance. Before invoking the FTCA remedy, a claimant must present the claim to the federal agency whose activities gave rise to the injuries and allow the agency the opportunity to settle the claim. 28 U.S.C. § 2675. If the agency denies the claim or takes no action (as the United States did here), the claimant may bring suit in federal district court (as Harris did here). See 28 U.S.C. § 2675(a). FTCA lawsuits are tried in federal district court without a jury. See 28 U.S.C. § 2402.

In addressing the dismissal of Harris's FTCA claims, the district court's factual findings "shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." Fed.R.Civ.P. 52(a); Anderson v. Bessemer...

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