Ricks v. Nickels

Decision Date09 July 2002
Docket NumberNo. 00-3176.,00-3176.
Citation295 F.3d 1124
PartiesJohn M. RICKS, Plaintiff-Appellant, v. Marvin L. NICKELS, Commandant USDB Ft. Leavenworth; Fred W. Bucher, S-3 Operations Officer, Assistant Chief of Staff; (NFN) Robinson, S-3 Operations Officer, Major; Mark P. Speere, Air Force Detachment Commander; (NFN) Stieger, NCOIC/ANCOIC of S-3 Operations, USDB Ft. Leavenworth; (NFN) Minton, NCOIC/ANCOIC of S-3 Operations, USDB Ft. Leavenworth; (NFN) Williams; (NFN) Cook; (NFN) Rudnicki; (NFN) Arthur; (NFN) Mitchell; (NFN) (NMI) Martin, all in various command/supervisory/administrative positions; John and Jane Does, 1-700 are correctional, administrative, or supervisory officials on USDB policies, Defendants-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Alison Ruttenberg, Boulder, CO, for Plaintiff-Appellant.

Major James Roger Agar II, Of Counsel, U.S. Army Litigation Division, (Lieutenant Colonel Tara A. Osborn, Of Counsel, U.S. Army Litigation Division; James E. Flory, United States Attorney, Topeka, Kansas; D. Brad Bailey, Assistant United States Attorney, Topeka, KS; with him on the brief), for Defendants-Appellees.

Before HENRY, BALDOCK, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.


Plaintiff-Appellant John M. Ricks appeals an order dismissing his claims brought under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics against Defendants Appellees for alleged constitutional violations incurred while incarcerated at the United States Disciplinary Barracks (USDB). See Bivens, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The issue presented is whether the Feres doctrine bars a military prisoner's Bivens claims for damages arising from alleged injuries sustained after the prisoner has received a complete punitive discharge from service. See Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). We have jurisdiction under 28 U.S.C. § 1291. Because Ricks' Bivens claims arise from events incident to his military service, this court affirms.


Ricks originally enlisted in the United States Air Force. After a trial and conviction for violations of Articles 85 and 134 of the Uniform Code of Military Justice (UCMJ), a general court-martial sentenced Ricks to fifteen years' imprisonment. Ricks received a dishonorable discharge on March 28, 1996, which was executed on April 3, 1996.1

At the time he filed the original complaint, Ricks was serving his sentence at the USDB in Forth Leavenworth, Kansas. The USDB is the Army Corrections System maximum custody facility and provides long-term incarceration for enlisted and officer personnel of the armed forces. No civilians are confined at the USDB. The USDB is run by the Commandant, a United States Army military police officer. Military police serve as correctional officers at the USDB, which does not employ civilian guards. At the time of the complaint, all named Defendants were active duty members of the United States Army, serving in their official capacities as Commandant, noncommissioned officers, guards, and administrative support for the USDB.

Ricks filed a complaint pro se, later amended, in the United States District Court for the District of Kansas seeking injunctive, mandamus, and monetary relief, as well as administrative sentence credit for alleged violations of his First, Fifth, and Eighth Amendment rights. Ricks alleged, inter alia, that the Defendants' various violations of his First Amendment rights included retaliation for filing litigation against the Defendants. Ricks also claims that he was sexually assaulted by prison guards during frisk searches on November 8, 1997 and January 13, 1998 and that his administrative complaints were ignored or summarily rejected.

The district court initially dismissed all claims except Ricks' First Amendment retaliation claim for punitive and nominal damages2 and his sexual assault claims for compensatory and punitive damages. Ricks does not appeal the district court's dismissal of his other claims. Although the Defendants argued that all claims were barred by the Feres doctrine, the district court stated that it was unable to determine whether Feres applied because Ricks had not indicated when he had been discharged. Thereafter, the Defendants brought another motion to dismiss, renewing their Feres doctrine argument. After additional briefing and further consideration, the district court dismissed Ricks' remaining claims as barred by Feres.

During the pendency of the lawsuit in district court, Ricks was transferred to the custody of the United States Bureau of Prisons. Because Ricks seeks only monetary damages on appeal, his transfer does not moot his claims. The only issue before this court is whether the district court properly dismissed Ricks' Bivens claims for damages pursuant to the Feres doctrine.3

A. Standard of Review

Although not specifically stated in its order, this court assumes that the district court dismissed Ricks' claims under the Feres doctrine pursuant to Federal Rule of Civil Procedure 12(b)(1). See Dreier v. United States, 106 F.3d 844, 847 (9th Cir.1997) (explaining that motion to dismiss pursuant to Feres doctrine is properly treated as a Rule 12(b)(1) motion to dismiss). Accordingly, this court reviews the district court's dismissal for lack of subject matter jurisdiction de novo. Quintana v. United States, 997 F.2d 711, 712 (10th Cir.1993). Because the Defendants challenge the sufficiency of Ricks' complaint to satisfy subject matter jurisdiction, and not Ricks' factual allegations, this court must accept the allegations in the complaint as true. See Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir.1995). Allegations in a pro se complaint are construed liberally. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curiam).

B. Incident to Service Test

In Feres, the Supreme Court created a judicial exception to the broad waiver of sovereign immunity in the Federal Tort Claims Act (FTCA). See 340 U.S. at 146, 71 S.Ct. 153. The federal government cannot be liable under the FTCA "for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." Id. The Supreme Court subsequently applied the exception created in Feres to damage actions under Bivens. See Chappell v. Wallace, 462 U.S. 296, 305, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983).

Relying on language in Feres, courts have applied the "incident to service" test. Originally, this test was cast in narrow terms, barring enlisted military personnel from bringing FTCA claims against a superior officer. See id. at 305, 103 S.Ct. 2362. In subsequent cases, the federal courts have expanded the reach of the Feres doctrine. See, e.g., United States v. Stanley, 483 U.S. 669, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987) (applying Feres to bar Bivens claims for damages against military and civilian officials for injuries resulting from the military's intentional administration of LSD to unwitting volunteer); United States v. Johnson, 481 U.S. 681, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987) (applying Feres to bar an FTCA claim against the United States alleging negligence by civilian employees of the Federal Aviation Administration); United States v. Shearer, 473 U.S. 52, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985) (applying Feres to FTCA claim arising from the decedent servicemember's murder committed by a fellow servicemember which occurred off-duty and off-base); Stencel Aero Eng'g Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977) (applying Feres to bar defendant corporation's cross-claim against United States for indemnification of servicemember's injuries arising from military activities); Pringle v. United States, 208 F.3d 1220 (10th Cir.2000) (per curiam) (applying Feres to an FTCA claim for injuries sustained from a beating after plaintiff servicemember was ejected from a military club); Quintana, 997 F.2d 711 (applying Feres to reserve servicemember's medical malpractice FTCA claim for injuries sustained from military training).

Courts have broadened the scope of the incident to service test to encompass injuries that are attenuated from the servicemember's duty status. In Pringle, this court stated:

In recent years, the Supreme Court has broadened Feres, to the point where it now encompasses, at a minimum, all injuries suffered by military personnel that are even remotely related to the individual's status as a member of the military. Courts applying the Feres doctrine have given a broad reach to Feres' "incident to service" test and have barred recovery by members of the armed services for injuries that at first blush may not have appeared to be closely related to their military service or status. Practically any suit that implicates the military's judgments and decisions runs the risk of colliding with Feres.

208 F.3d at 1223-24 (quotations, citations, and alterations omitted). As a result of the broad application of the incident to service test, "the Feres doctrine has been applied consistently to bar all suits on behalf of service members against the Government based upon service-related injuries." Johnson, 481 U.S. at 687-88, 107 S.Ct. 2063 (emphasis added); see also Quintana, 997 F.2d at 712 (reasoning that Feres should bar plaintiff's FTCA injuries "precisely because of" her relationship to the military). The Supreme Court has emphasized that it has never deviated from the incident to service test. See Johnson, 481 U.S. at 686, 107 S.Ct. 2063 (citing cases).

C. "Special Factors" Analysis

Federal courts have employed a second test which examines whether applying Feres would further its underlying purposes in a particular case. The Supreme Court in Feres gave several justifications for the doctrine, but courts have subsequently emphasized three purposes when determining Feres' applicability: "(1) the distinctly federal nature of the relationship...

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26 cases
  • Newton v. Lee, s. 10–4063
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • April 24, 2012
    ...Feres's “incident to service” test to bar a range of damages actions against military and civilian officials. See Ricks v. Nickels, 295 F.3d 1124, 1127–28 (10th Cir.2002) (collecting cases). The Supreme Court extended the Feres doctrine to bar constitutional claims in Chappell v. Wallace, 4......
  • Ortiz v. United States
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • May 15, 2015
    ...purposes for the doctrine to determine whether application to a given fact pattern furthers those reasons. See Ricks v. Nickels, 295 F.3d 1124, 1128 (10th Cir.2002). Courts articulated several rationales—often called “special factors”—for Feres 's existence. Id. Based loosely on Feres, cour......
  • Carter v. United States
    • United States
    • U.S. District Court — District of Maryland
    • May 24, 2022
    ...analysis which would consider how military discipline would actually be affected in a particular case.'” Id. (quoting Ricks v. Nickels, 295 F.3d 1124, 1130 (10th Cir. 2002)). Moreover, the rationale of “preserving military discipline . . . does not arise only when the lawsuit calls into que......
  • Clendening v. United States
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • November 30, 2021
    ...it applies, it excepts the federal Government from any liability ‘under the [Federal Tort Claims Act]. ’ " (quoting Ricks v. Nickels , 295 F.3d 1124, 1127 (10th Cir. 2002) ). Thus, we and other circuits have repeatedly applied Feres to bar claims against the United States even where the wro......
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1 books & journal articles
    • United States
    • Air Force Law Review No. 81, March 2020
    • March 22, 2020
    ...(barring a claim for alleged malpractice during the final step of a claimant's discharge process)); see also, e.g., Ricks v. Nickels, 295 F.3d 1124, 1129-30 (10th Cir. 2002) (explaining the relationship between Stanley's prohibition and the "incident to service" [104] Figley, supra note 48,......

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