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September 1, 1978

Anthony A. TORRES, Plaintiff,
Larry TAYLOR, Warden of the Metropolitan Correctional Center, and Deleno W. Matthews, Unit Manager at the Metropolitan Correctional Center, Defendants

The opinion of the court was delivered by: WEINFELD

Plaintiff, Anthony Torres, formerly a prisoner incarcerated at the Metropolitan Correctional Center ("MCC"), a federal detention facility in New York City, commenced this action against defendants Larry Taylor, the warden of MCC, and Deleno Matthews, a unit manager at the same institution, charging them with violations of his Fifth and Eighth Amendment rights. He seeks compensatory and punitive damages. *fn1" The complaint, as amended, asserts that this Court has general federal question jurisdiction to grant damages to redress violations of constitutional rights. *fn2" Defendants disagree and move to dismiss the complaint for failure to state a claim for which relief can be granted. *fn3" The legal issue presented by defendants' motion is whether this Court should imply a cause of action for violations of Fifth and Eighth Amendment rights based on the rationale of Bivens v. Six Unknown Named Agents of The Federal Bureau of Narcotics. *fn4"

Plaintiff alleges that on January 6, 1977, during his incarceration at MCC, he was beaten and kicked by defendant Matthews, that his requests for medical attention were ignored by MCC correctional officials, and that defendant Taylor failed to fulfill his duties of supervision over the personnel of MCC. Plaintiff claims that by such conduct the defendants, operating under color of law, violated his Eighth Amendment right to be free of cruel and unusual punishment and his Fifth Amendment right not to be punished without due process of law. Assuming that the conduct described rises to the level of constitutional deprivation, *fn5" the Court nonetheless dismisses the complaint because a new cause of action should not be created where the Federal Tort Claims Act *fn6" already provides an adequate remedy for the constitutional deprivations alleged. *fn7"

 Bivens is the only case in which the Supreme Court has implied a private cause of action for damages arising out of violation of constitutional rights by governmental officials. In that case, plaintiff's Fourth Amendment rights were infringed by the illegal search of his home by agents of the Federal Bureau of Narcotics. The injured party had no adequate remedy for damages suffered on account of this unlawful conduct, since the United States Government had not waived its sovereign immunity in cases where its agents committed certain intentional torts. *fn8" Nor was the "exclusionary rule" a sufficient remedy: because plaintiff was never prosecuted, there was no occasion to suppress illegally obtained evidence. Therefore, acting pursuant to its federal common law powers to effectuate federal rights by creating suitable federal remedies, the Supreme Court implied a cause of action for damages against the agents. *fn9"

 Although Bivens on its facts creates a private damage action only for violations of the Fourth Amendment, its rationale has been applied by some lower federal courts to imply causes of action under other constitutional provisions, mainly the First and Fourteenth Amendments. *fn10" However, courts have shown considerable reluctance to apply the Bivens doctrine in areas where its strict reasoning does not apply; *fn11" indeed, its logic has almost never been utilized to remedy violations of constitutional rights guaranteed by the Fifth and Eighth Amendments in prison settings. *fn12"

 As the concurring opinion of Mr. Justice Harlan makes clear, a premise of Bivens' holding is the fact that "some form of damages is the only possible remedy for someone in Bivens' alleged position." *fn13" Because this premise is essential to the holding of Bivens, federal courts should not imply causes of action under the Constitution where there is already an adequate remedy for constitutional deprivations. Thus one important limitation upon the scope of Bivens is "that the existence of an effective and substantial federal statutory remedy for the plaintiffs obviates the need to imply a constitutional remedy." *fn14" The inquiry in the present case is whether such a statutory remedy exists under the Federal Tort Claims Act to redress plaintiff's asserted injuries.

 The Federal Tort Claims Act provides that the United States Government shall be liable for "injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." *fn15" Before 1974, the Government was not liable for certain intentional torts, including the assault and battery alleged in plaintiff's complaint here, but in that year Congress amended the Act to provide that "with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of (the Act) shall apply to any claim arising . . . out of assault, battery . . . ." *fn16" As defined by the 1974 Amendment, an "investigative or law enforcement officer" is "any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law." *fn17" Both defendants are sworn officers of the United States *fn18" and are empowered by statute to "make arrests without warrant" for certain violations of federal law *fn19" and by case law to conduct searches for evidence. *fn20"

 Consequently, the Federal Tort Claims Act affords an avenue of relief for injuries arising out of the assault and battery plaintiff alleges, if plaintiff can prove the facts asserted in his complaint. *fn21" The Court deems the compensatory damages provided under the Act to be sufficient redress for the injuries alleged in plaintiff's complaint, and there is no need to imply a constitutional cause of action against the officers. *fn22" This reasoning is in accord with recent decisions interpreting Title VII of the Civil Rights Act of 1964 *fn23" to be an adequate remedy for Fifth Amendment violations: *fn24" "a proper regard for the doctrine of implication underlying judicially-created Bivens actions" has led at least one court "to conclude that no damage action need be implied where Title VII serves to vindicate the same rights sought to be protected by the damage claim." *fn25"

 The result in this case is further supported by a factor that the Supreme Court has often considered probative in refusing to imply private actions under federal statutes: implication should usually be denied where the private action would bypass an administrative scheme established by Congress to handle claims of violations of federal rights. *fn26" Under the Federal Tort Claims Act the applicant for relief must first submit his claim to the appropriate administrative agency (here, the Bureau of Prisons) within two years after his cause of action arises; if the agency fails to grant satisfactory relief within six months, plaintiff may then bring an action in federal court against the Government. *fn27" Congress intended that this exhaustion of remedies requirement be applied strictly so as "to ease court congestion and avoid unnecessary litigation, while making it possible for the Government to expedite the fair settlement of tort claims." *fn28" Both purposes would be thwarted by an implied private action. On the one hand, a new Bivens action would allow, indeed encourage, litigants to ignore the dispute-resolution mechanism set up by Congress; on the other hand, the creation of dual liability of the Government and its agents would lead to duplicative litigation that could create problems of judicial management. *fn29"

 The rationale of Bivens does not justify plaintiff's cause of action under the Fifth and Eighth Amendments. Courts should not create new remedies where they are not necessary to guarantee federal rights and, particularly, where they would also undermine the carefully considered congressional procedures for raising claims. *fn30" The complaint is dismissed without prejudice to plaintiff's right to pursue his remedy under the Federal Tort Claims Act.

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