Hicks v. Small

• Decision Date: 01 December 1993
• Docket Number: No. CV-N-92-658-ECR.,CV-N-92-658-ECR.
• Citation: 842 F. Supp. 407
• Parties: Allen W. HICKS, Plaintiff, v. Dr. Elisabeth SMALL, Defendant.
• Court: U.S. District Court — District of Nevada

842 F. Supp. 407

Allen W. HICKS, Plaintiff, v. Dr. Elisabeth SMALL, Defendant.

No. CV-N-92-658-ECR.

United States District Court, D. Nevada.

December 1, 1993.

George F. McNally, Law Office of Lawrence J. Semenza, Reno, NV, for plaintiff.

Shirley Smith, Asst. U.S. Atty., Reno, NV, for defendant.

ORDER

EDWARD C. REED, Jr., District Judge.

This case is before us on Defendant's Motion (Doc. # 40) to Dismiss for Lack of Subject Matter Jurisdiction, and on the basis that Plaintiff's action is barred by Defendant's Immunity.

Plaintiff filed a Response (Doc. # 43) on July 15, 1993. Defendant never filed a Reply.

BACKGROUND

A. FACTUAL BACKGROUND

Plaintiff is a Veteran and receives Veterans Benefits and at one time received care at the Veteran's Administration Medical Center at Reno, Nevada. While there, Plaintiff contends a VA Dr., the Defendant Dr. Small, prevented him from contacting his congressional representatives to complain about his treatment by Dr. Small specifically and the VA Medical Center at Reno, Nevada generally. Plaintiff further alleges that Dr. Small attempted and for a period of time succeeded in reducing his benefits in retaliation for his complaints.

Plaintiff's complaint states a Bivens¹ claim against Dr. Small for violation of his First and Fifth Amendment rights and a state tort claim of outrage or intentional infliction of emotional distress.

Defendant's Motion to Dismiss claims that we lack subject matter jurisdiction over the Bivens claims and that the state tort claim is precluded by Defendant's immunity. We address these issues in turn.

B. PROCEDURAL BACKGROUND

Plaintiff's complaint was first filed in the Eastern District of Arkansas. While there, Defendant presented a similar Motion to Dismiss which also raised the issues of venue and personal jurisdiction. The court did not address the issues now presented to us but instead transferred the case to this court pursuant to 28 U.S.C. § 1406. The case was transferred to us because the district court for the Eastern District of Arkansas found that venue and personal jurisdiction were lacking in Arkansas but existed in Nevada. (Doc. # 26).

DISCUSSION OF LAW

A. SUBJECT MATTER JURISDICTION

1. Treatment as Motion to Dismiss for Failure to State a Claim

A motion to dismiss for lack of subject matter jurisdiction is never waived and can be raised at any time. Fed.R.Civ.P. 12(h)(3). Defendant titles this motion for dismissal as one for want of subject matter jurisdiction.

Defendant claims that this court lacks subject matter jurisdiction over Plaintiff's Bivens claim. Defendant asserts that Congress has provided an alternative, comprehensive federal remedial scheme which should preclude a Bivens action.

Before proceeding to our legal analysis we clarify how we will proceed. As will be discussed, this court does have subject matter jurisdiction. Nevertheless, a Bivens action or remedy may be inappropriate, where certain circumstances exist. Thus, Defendant's Motion is more appropriately labelled a motion to dismiss for failure to state a claim upon which relief could be granted. Fed.R.Civ.P. 12(b)(6).

Ordinarily rule 12 motions should be made all at one time. Fed.R.Civ.P. 12(g). However, 12(b)(6) motions to dismiss for failure to state a claim upon which relief can be granted are excepted from this general rule. Fed. R.Civ.P. 12(h)(2). Such motions "may be made in any pleading permitted or ordered under Rule 7(a), or by motion for judgment on the pleadings, or at the trial on the merits." Id. Furthermore, a motion to dismiss for lack of subject matter jurisdiction may be treated as a motion to dismiss for failure to state a claim upon which relief can be granted where the jurisdictional challenge is inseparable from the merits. Reeves v. Guiffrida, 756 F.2d 1141 (5th Cir.1985).

The parties fully briefed the relevant issues. The legal analysis is identical regardless of whether this should be denominated a motion to dismiss for lack of subject matter jurisdiction or for failure to state a claim.

For the above reasons, we shall treat Defendant's Motion to Dismiss (Doc. #40) for lack of subject matter jurisdiction as a motion to dismiss for failure to state a claim.

2. Standards for 12(b)(6) Motion for Dismissal

A court may grant a motion to dismiss for failure to state a claim on which relief can be granted only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Western Reserve Oil & Gas Co. v. New, 765 F.2d 1428, 1430 (9th Cir.1985), cert. denied, 474 U.S. 1056, 106 S.Ct. 795, 88 L.Ed.2d 773 (1986). A court may only look to the facts alleged in the complaint when deciding whether to grant a 12(b)(6) motion. Id. All material facts alleged in the complaint must be taken as true and construed in the light most favorable to the nonmoving party. Amfac Mortgage Corp. v. Arizona Mall of Tempe, 583 F.2d 426, 430 (9th Cir. 1978).

3. Subject Matter Jurisdiction Exists to Grant Bivens Relief

The "district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331.

In the landmark case of Bivens v. Six Unknown Agents of the Federal Narcotics Bureau, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Court held that federal employees or officers acting under the color of their authority may be held personally liable for their violations of a person's constitutional rights.

So called Bivens actions for money damages arising from the violation of constitutional rights by federal officers arise under 28 U.S.C. § 1331. See, Bush v. Lucas, 462 U.S. 367, 374, 103 S.Ct. 2404, 2409, 76 L.Ed.2d 648 (1983). In Bush, the Court stated that "the federal courts' power to grant relief not expressly authorized by Congress is firmly established." Id. The Court further explained that the jurisdictional grant of authority contained in § 1331 included:

"the authority to decide whether a cause of action is stated by a plaintiff's claim that he has been injured by a violation of the Constitution, Bell v. Hood, 327 U.S. 678, 684 66 S.Ct. 773, 777, 90 L.Ed. 939 (1946) ... and the authority to choose among available judicial remedies in order to vindicate constitutional rights."

Id.

It appears to this court that we have jurisdiction under § 1331 to hear a claim for deprivation of Plaintiff's constitutional rights if such a claim can be stated. "The federal courts' statutory jurisdiction to decide federal questions confers adequate power to award damages to the victim of a constitutional violation." Bush v. Lucas, 462 U.S. at 378, 103 S.Ct. at 2411. The remaining question is when that power should be exercised to allow a judicially created, non-statutory private cause of action.

4. Analysis of 12(b)(6) Motion to Dismiss: i.e. Does a Bivens Cause of Action Exist?

The Court in Bivens noted that Congress had not specifically provided for any monetary remedy for persons whose constitutional rights were violated by federal officers acting under color of authority. Bivens, 403 U.S. at 396, 91 S.Ct. at 2004. The Court allowed a private cause of action under the Constitution itself. Id. Before doing so however, the Court deliberated whether there were any special factors counseling hesitation in the absence of affirmative action by Congress. Id.

Later cases seem to have adopted the view of Justice Harlan, (concurring in Bivens) who

"thought it clear that the power to authorize damages as a remedy for the vindication of a federal constitutional right had not been placed by the Constitution itself exclusively in Congress' hands. Instead he reasoned the real question did not relate to `whether the federal courts have the power to afford one type of remedy as opposed to the other, but rather the criteria which should govern the exercise of our power."

Bush v. Lucas, 462 U.S. 367, 377, 103 S.Ct. 2404, 2411, 76 L.Ed.2d 648 quoting from Bivens 403 U.S. 388, 401-407, 91 S.Ct. 1999, 2007-10 (1971) (Harlan, J., concurring) (citations omitted).

The criteria which should govern our exercise of power to allow an action for monetary damages includes whether there are "`special factors counselling hesitation in the absence of affirmative action by Congress,' no explicit statutory prohibition against the relief sought, and no exclusive statutory alternative remedy." Schweiker v. Chilicky, 487 U.S. 412, 421, 108 S.Ct. 2460, 2466, 101 L.Ed.2d 370 (1988).

After the initial cases developing Bivens, the Court has "responded cautiously to suggestions that Bivens remedies be extended into new contexts." Id. In part this is because

"the concept of `special factors counselling hesitation in the absence of affirmative action by Congress' has proved to include an appropriate judicial deference to indications that congressional inaction has not been inadvertent. When the design of a Government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration, we have not created additional Bivens remedies."

Id. at 423, 108 S.Ct. at 2468.

Thus in Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648, the Court declined to allow Bivens remedies to a federal employee who was demoted for exercising his First Amendment rights. The Court assumed a First Amendment violation occurred and recognized that the statutorily provided remedial scheme did not provide as full a remedy as a Bivens action would provide. The Court relied on the fact that Congress had paid careful attention to policy questions and noted that "the Legislature is far more competent than the Judiciary to carry out the necessary `balancing of governmental efficiency and the rights of employees....'" Schweiker 487 U.S. at 423, 108 S.Ct. at 2468, quoting from Bush, 462 U.S. at 389, 390, 103 S.Ct. at 2417, 2417.

This case and Bush share many...