Sanchez v. McLain

• Decision Date: 23 September 2011
• Docket Number: Civil Action No. 5:07–cv–00355.
• Citation: 867 F.Supp.2d 813
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Andres Javier SANCHEZ, Plaintiff, v. Dominic McLAIN, et al., Defendants.

867 F.Supp.2d 813

Andres Javier SANCHEZ, Plaintiff,

v.Dominic McLAIN, et al., Defendants.

Civil Action No. 5:07–cv–00355.

United States District Court, S.D. West Virginia.

Sept. 23, 2011.

Andres Javier Sanchez, San Antonio, TX, pro se.

J. Christopher Krivonyak, United States Attorney's Office, Charleston, WV, for Defendant.

MEMORANDUM OPINION AND ORDER

THOMAS E. JOHNSTON, District Judge.

Pending before the Court are Plaintiff's motions for summary judgment [Docket 97, 100, & 101], Defendants' motions to dismiss or, alternatively, for summary judgment [Docket 99 & 129], Plaintiff's Motion to Unseal [Docket 118], and Defendants' motion in limine to exclude Plaintiff's expert witnesses, Drs. Kimmel and Simons [Docket 132].

For reasons that follow, Plaintiff's motions for summary judgment [Docket 97, 100 & 101] are DENIED, Defendants' motions to dismiss or, alternatively, for summary judgment [Docket 99 & 129] are GRANTED, and Plaintiff's Motion to Unseal [Docket 118] and Defendants' motion in limine [Docket 132] are DENIED AS MOOT.

I. PROCEDURAL BACKGROUND

The full factual background and procedural history are set forth in United States Magistrate Judge Mary E. Stanley's Proposed Findings and Recommendation (“PF & R”) (Docket 52), as well as in this Court's prior Memorandum Opinion adopting the PF & R in part (Docket 77), and need not be restated here. In the PF & R, Magistrate Judge Stanley recommended that this Court find that it lacks jurisdiction over Plaintiff's Federal Tort Claims Act (“FTCA”) claim, grant Defendants' motion to dismiss the FTCA claim against Defendants Dr. Dominick McLain and Dr. Roger Edwards, grant Defendants' motion for summary judgment as to Plaintiff's Bivens claims against all Defendants, and deny Plaintiff's motion for summary judgment.¹ (Docket 52.) Plaintiff filed written objections to the PF & R on September 23, 2008. (Docket 59.)

By its July 8, 2009, 2009 WL 2045093, Memorandum Opinion and Order (Docket 77) and Judgment Order (Docket 78), the Court took under advisement Plaintiff's objection to the PF & R's recommendation that his Bivens claim against Dr. McLain and Dr. Edwards be dismissed. (Docket 77 at 11.) The Court, however, overruled Plaintiff's objections to the PF & R as they related to his other claims. The Court ordered the parties to submit additional briefing “on the issue of whether, in light of recently filed medical records, Defendants McLain and Edwards were deliberately indifferent to Plaintiff's serious medical needs.” Id. at 12.

On September 9, 2009, the United States filed its responsive briefing as directed by the Court's July 8, 2009, Memorandum Opinion and Order. (Docket 83.) The Court later permitted limited discovery pertinent to the Plaintiff's Bivens deliberate indifference claim against Defendants McLain and Edwards. (Docket 89.) Thereafter, Plaintiff filed three renewed summary judgment motions (Docket 97, 100, & 101) and Defendants filed a motion seeking dismissal or summary judgment. (Docket 99.) Plaintiff filed memoranda, along with supporting materials, in response to Defendants' renewed motion for summary judgment or dismissal. (Docket 123, 124 & 128.) On April 8, 2011, the Defendants filed their reply to Plaintiff's memoranda, along with a motion to dismiss for lack of jurisdiction. (Docket 129.) Plaintiff filed a further response to the Defendants' reply and a motion to dismiss on April 22, 2011. (Docket 130.) Finally, Defendants filed a motion in limine seeking exclusion of Plaintiff's two medical experts, Drs. Kimmel and Simons. (Docket 132.)

These matters, having been fully briefed, are now ripe for this Court's review.

II. STANDARD OF REVIEW

The district courts of the United States are courts of limited subject matter jurisdiction. Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005). They possess only the jurisdiction authorized them by the United States Constitution and by federal statute. Bowles v. Russell, 551 U.S. 205, 212–13, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) (“Within constitutional bounds, Congress decides what cases the federal courts have jurisdiction to consider”); Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). Thus, when a district court lacks subject matter jurisdiction over an action, the action must be dismissed. Arbaugh v. Y & H Corp., 546 U.S. 500, 506–07, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006).

A motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure raises the fundamental question of whether a court is competent to hear and adjudicate the claims brought before it. It is axiomatic that a court must have subject matter jurisdiction over a controversy before it can render any decision on the merits.

III. DEFENDANTS' MOTION TO DISMISS FOR LACK OF JURISDICTION

A. Law Governing the Effect of the FTCA's Judgment Bar on Bivens Claims

A prospective plaintiff seeking redress against a federal official for injury has two distinct avenues of relief. He may file a common law tort claim against the United States under the FTCA and—or in the alternative—he may file a constitutional tort claim against the individual officer under Bivens.

In deciding whether to pursue a claim under the FTCA or under Bivens, or both, a plaintiff must consider the distinct advantages and drawbacks of the two causes of action.² First, the defendant in an FTCA action is the United States, whereas in a Bivens suit the defendant is the individual official. 28 U.S.C. §§ 1346(b) & 2674. The obvious advantage to pursuing an FTCA claim is that payment of a successful claim is assured through the deep pockets of the United States treasury; whereas a successful judgment against an individual defendant may not be satisfied if the defendant lacks sufficient assets. S.Rep. No. 93–588, at 2–3 (1973), reprinted in 1974 U.S.C.C.A.N. 2789, 2791. Second, while a jury trial is available in a Bivens suit, only a bench trial is permitted under the FTCA. 28 U.S.C. § 2402. Third, punitive damages are available in a Bivens action but are not available under the FTCA. Id. § 2674. Finally, a judgment under the FTCA constitutes “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. Thus, if a plaintiff elects to pursue a remedy under the FTCA to judgment, he risks dismissal of any Bivens claim if the Bivens claim arises from “the same subject matter” and is against the same “employee whose act or omission gave rise to the claim.” Id. This is true whether the FTCA claim is brought before or after the Bivens claim, or if, as here, both claims are brought in the same suit. This is also true irrespective of whether the FTCA judgment is favorable to the plaintiff or the United States. Compare Unus v. Kane, 565 F.3d 103, 121–22 (4th Cir.2009) (same suit, FTCA judgment for United States), with Rodriguez v. Handy, 873 F.2d 814, 816 (5th Cir.1989) (same suit, FTCA judgment for plaintiffs); see also Williams v. Fleming, 597 F.3d 820, 821 (7th Cir.2010) (same suit, FTCA judgment for United States); Manning v. United States, 546 F.3d 430, 431 (7th Cir.2008) (same suit, FTCA judgment for United States); Harris v. United States, 422 F.3d 322, 333–35 (6th Cir.2005) (same suit, FTCA judgment for United States); Estate of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840, 858 (10th Cir.2005) (same suit, FTCA judgment for plaintiff); Farmer v. Perrill, 275 F.3d 958, 959 (10th Cir.2001) (different suits, FTCA judgment for United States); Hoosier v. Rasmussen, 90 F.3d 180, 184–85 (7th Cir.1996) (different suits, FTCA judgment for United States); Gasho v. United States, 39 F.3d 1420, 1437 (9th Cir.1994) (different suits, FTCA judgment for United States); Engle v. Mecke, 24 F.3d 133, 134–35 (10th Cir.1994) (same suit, FTCA judgment for plaintiff); Arevalo v. Woods, 811 F.2d 487, 490 (9th Cir.1987) (same suit, FTCA judgment for plaintiff); Serra v. Pichardo, 786 F.2d 237, 238 (6th Cir.1986) (same suit, FTCA judgment for plaintiff); Moon v. Price, 213 F.2d 794, 796 (5th Cir.1954) (different suits, FTCA judgment for plaintiff); Freeze v. United States, 343 F.Supp.2d 477, 481–82 (M.D.N.C.2004), aff'd131 Fed.Appx. 950 (4th Cir.2005) (per curium) (same suit, FTCA judgment for United States). Contra Kreines v. United States, 959 F.2d 834, 838 (9th Cir.1992) (holding that where FTCA and Bivens claim was brought in the same action, plaintiff could proceed after FTCA judgment entered in favor of United States).

B. Discussion

In their motion to dismiss, Defendants contend they are entitled to a dismissal as a matter of law because the Court's dismissal of Plaintiff's FTCA claims operates as a bar to Plaintiff's Bivens claim. (Docket 129.) Plaintiff contends that Congress intended FTCA and Bivens claims to be complementary causes of action and that Congress explicitly exempted constitutional claims from the FTCA's exclusiveness of remedy rule. See Carlson v. Green, 446 U.S. 14, 18–25, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980); see also28 U.S.C. § 2679(b)(2)(A). Thus, the question to be decided is whether the Court retains subject matter jurisdiction over Plaintiff's Bivens claim when the Court has entered a judgment for the United States on Plaintiff's FTCA claim.

When confronted with a question of statutory construction, “[e]lementary principles of statutory construction command a court to enforce the unambiguous terms of a duly enacted statute.” Salem v. Holder, 647 F.3d 111, 115 (4th Cir.2011); see also Markovski v. Gonzales, 486 F.3d 108, 110 (4th Cir.2007). “[I]n interpreting a statute a court should always turn first to one cardinal canon before all others ... courts must presume that a legislature says in a statute what it means and means in a statute what it says there.” Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253–54, ...