Hernandez v. Lattimore

• Decision Date: 06 December 1979
• Docket Number: No. 351,D,351
• Citation: 612 F.2d 61
• Parties: Nelson HERNANDEZ, Plaintiff-Appellant, v. C. LATTIMORE, Nathaniel Mitchell, Hugh Herbert, N. Avignone, and R. Brown, Correctional Officers, Metropolitan Correctional Center, Defendants-Appellees. ocket 78-2098.
• Court: U.S. Court of Appeals — Second Circuit

Page 61

612 F.2d 61

Nelson HERNANDEZ, Plaintiff-Appellant, v. C. LATTIMORE, Nathaniel Mitchell, Hugh Herbert, N. Avignone and R. Brown, Correctional Officers, Metropolitan Correctional Center, Defendants-Appellees.

No. 351, Docket 78-2098.

United States Court of Appeals Second Circuit.

Argued Nov. 14, 1978.

Decided Dec. 6, 1979.

John Boston, New York City (William E. Hellerstein and Robert B. Shapiro, The Legal Aid Society, Prisoners' Rights Project, New York City), for plaintiff-appellant.

Kent T. Stauffer, Asst. U. S. Atty., New York City (Robert B. Fiske, Jr., U. S. Atty., S. D. N. Y., and Patrick H. Barth, Asst. U. S. Atty., New York City, of counsel), for defendants-appellees.

Before WATERMAN and TIMBERS, Circuit Judges, and NICKERSON, District Judge. ^*

WATERMAN, Circuit Judge:

Plaintiff appeals from a judgment entered in the United States District Court for the Southern District of New York, (Brieant, District Judge), dismissing his complaint for failure to state a claim upon which relief could be granted and for lack of subject matter jurisdiction. In his complaint plaintiff sought to recover damages for alleged injuries caused by excessive and unnecessary force applied to him by the defendants, federal correctional officers, while he was an incarcerated prisoner. He relied upon the authority of Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), his claim being that he suffered cruel and unusual punishment despite the protection guaranteed him by the Eighth Amendment. To this constitutional claim plaintiff appended a state law assault and battery claim. The court below decided that the constitutional remedy provided for in Bivens against the individual officers had been preempted by the amendment to the Federal Tort Claims Act (FTCA) adopted subsequent to the events in Bivens, by which, 28 U.S.C. § 2680(h), on March 16, 1974, the government had waived its sovereign immunity for assaults and batteries. Accordingly, the court below granted summary judgment in favor of defendants, thereby dismissing plaintiff's Bivens action in light of its finding that there was now a full and adequate remedy against the government itself available to the plaintiff under the FTCA. Having thus disposed of plaintiff's constitutional claim, the court below also dismissed plaintiff's pendent state law claim on the ground of a lack of subject matter jurisdiction. We reverse the judgment dismissing plaintiff's complaint and remand the cause for further proceedings below inasmuch as we expressly find that the existence of the FTCA provision does not preempt a Bivens action.

This litigation is based on events that took place on the evening of October 4, 1976, at the Metropolitan Correctional Center (M.C.C.) in New York City, where Hernandez was incarcerated. According to information elicited in the district court proceedings, on that evening Hernandez overturned a salad tray in the M.C.C. cafeteria during the evening meal. Although the The complaint focuses on alleged attacks upon him which Hernandez claims occurred while en route to the holding area. Hernandez charges that, while surrounded by defendants Mitchell, Herbert, Avignone, and Brown, he was punched about the face and body by defendant Lattimore, and kicked by an unidentified defendant. Hernandez insists that these attacks occurred without provocation or because of any disobedience to orders. The complaint further alleges that while bleeding profusely he was deposited in the holding area where he received no medical attention. ³

complaint does not recite the events leading up to the initial altercation, statements made at argument on the defendants' motion to dismiss indicated that by overturning the salad tray Hernandez was protesting a correctional officer's failure, or refusal, to supply him with silverware to replace the plastic utensils that were available. ¹ Shortly after dinner was served Hernandez returned to his cell. He alleges that soon after his return defendants Lattimore, Mitchell, Herbert, Avignone and Brown visited his cell, allegedly conducted a "strip-search," and later escorted him fully clothed into an elevator which deposited him at a third-floor holding area. ²

As a result of the actions of the correctional officers, Hernandez asserts that he sustained injuries to his face, mouth, and body, as well as his psyche. Hernandez charges that the conduct of the defendant officers amounted to a violation of his Eighth Amendment right to be free from cruel and unusual punishment and constituted assault and battery under state law as well. He seeks $60,000 in compensatory damages jointly and severally from the defendants and an additional $120,000 in punitive damages.

The defendants pleaded a general denial to all the allegations of the complaint and also asserted as affirmative defenses that their conduct was lawful; that the court lacked subject matter jurisdiction; and that plaintiff failed to state a claim upon which relief could be granted. Additionally, defendant After so pleading, defendants moved to dismiss the federal claim for failure to state a claim upon which relief could be granted, and moved for dismissal of the pendent state claim for lack of federal court subject matter jurisdiction. Inasmuch as there was a consideration of matters outside the pleadings, the motion for dismissal was treated by the district court as a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. ⁵

Lattimore affirmatively pleaded self-defense, and he counterclaimed for $5,000 compensatory damages and $10,000 in punitive damages for assault and battery by plaintiff upon him. ⁴

The district court, although recognizing that a private damage remedy may be implied directly from the Constitution under Bivens, supra, and its progeny, concluded that the availability of a "full and adequate" remedy under the FTCA precluded a Bivens remedy. Acknowledging that the FTCA did not set forth a full alternative to a Bivens remedy, the court found that the alleged inadequacies of the statutory remedy ⁶ did not deprive Hernandez of an efficacious vehicle for the vindication of his federally secured rights under the Eighth Amendment. As stated by the district court, "(t)he Federal Tort Claims Act, . . . provides the very remedy that Mr. Hernandez seeks, and which was not then available to Webster Bivens money damages." In reliance, therefore, on the existence of an alternative specific statutory remedy, ⁷ the district court determined that, pursuant to the FTCA, Hernandez' federal rights could be fully redressed, and so refused to imply a constitutional remedy under Bivens.

Our review of the district court's judgment dismissing plaintiff's complaint naturally On the morning of November 26, 1965, Webster Bivens' apartment was entered by agents of the Federal Bureau of Narcotics, who, acting under the cloak of federal authority, and without probable cause or warrant, caused Bivens to be arrested for alleged narcotics violations. The complaint filed against Bivens was, however, subsequently dismissed by the United States Commissioner. Bivens brought an action against the individual officers, seeking $15,000 jointly and severally in compensatory damages. The complaint alleged that the arrest and events preceding his arrest had caused Bivens great humiliation, embarrassment, and mental suffering. The district court dismissed the complaint for lack of federal jurisdiction. Bivens v. Six Unknown Named Agents, 276 F.Supp. 12 (E.D.N.Y.1967). We affirmed the district court and, despite recognition that an action for trespassory damages should be maintainable in federal courts, ⁸ determined that, in view of the availability of injunctive relief, the exclusionary rule, and state law tort actions for the vindication of Bivens' rights, another judicially created damage remedy was not indispensable to the effectuation of the Fourth Amendment protections. Bivens v. Six Unknown Named Agents, 409 F.2d 718 (2d Cir. 1969). On certiorari, the Supreme Court reversed and held, Inter alia :

begins with the Supreme Court's seminal decision in Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), wherein the Court held that a cause of action for damages against federal law enforcement officers who violate the Fourth Amendment could be inferred directly from provisions of the U.S. Constitution.

The question is merely whether petitioner, if he can demonstrate an injury consequent upon the violation by federal agents of his Fourth Amendment rights, is entitled to redress his injury through a particular remedial mechanism normally available in the federal courts. . . . Having concluded that petitioner's complaint states a cause of action under the Fourth Amendment, we hold that petitioner is entitled to recover money damages for any injuries he has suffered as a result of the agents' violation of the Amendment.

Bivens, supra, 403 U.S. at 397, 91 S.Ct. at 2005 (citations omitted).

The holding in Bivens represented the first judicial recognition of a cause of action implied directly under a constitutional provision. Up until the Bivens Decision litigants armed only with the general jurisdictional statute, 28 U.S.C. § 1331, were relatively unsuccessful in utilizing the positive law of the Constitution as a vehicle to force affirmative action. See, e. g., Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946); Cf. Jacobs v. United States, 290 U.S. 13, 54 S.Ct. 26, 78 L.Ed. 142 (1933) (Fifth Amendment: just compensation).

The keystone of the Bivens decision was the Court's recognition that the commands of the Fourth Amendment created an affirmative federal right to be free from unreasonable searches and seizures, a right which could be redressed in money damages even in the absence of explicit congressional action authorizing the remedy. In fashioning a remedy for Bivens directly...