Relying upon the authority of Bivens v. Six Unknown Named Agents of Fed. Bur. of Narc., 403 U.S. 388 (1971), appellant, an incarcerated prisoner, alleging violation of his constitutional rights by defendants, sought damages for their alleged tortious acts allegedly injuring him. The court below, S.D.N.Y., Brieant, J., dismissed the complaint. On a somewhat different ground than the ground relied upon below, the judgment of dismissal is AFFIRMED.
Before: WATERMAN and TIMBERS, Circuit Judges, and NICKERSON, District Judge*fn*
WATERMAN, Circuit Judge :
Plaintiff appeals from a judgment entered in the United States District Court for the Southern District of New York 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 while he was an incarcerated prisoner. He relied upon the authority of Bivens v. Six Unknown Named Agents of Fed. Bur. of Narc., 403 U.S. 388 (1971), his claim being that he had suffered cruel and unusual punishment despite the protection guaranteed him by the eighth amendment. The court below decided that the constitutional remedy provided for in Bivens against the individual officers had been preempted by the amendment to the Tort Claims Act adopted later than the events in Bivens, by which, on March 16, 1974, 28 U.S.C. § 2680(h), the government had waived its sovereign immunity for assaults and batteries and that there was now a full and adequate remedy against the government itself available to the plaintiff under the Federal Tort Claims Act.
We concur in the result reached in the district court and affirm the judgment below entered on July 20, 1978, dismissing the action as to the appellees herein. In so doing, however, we expressly find that the existence of the Federal Tort Claims Act provision does not preempt a Bivens action. We predicate our affirmance on the appellant's failure to demonstrate that his alleged injury was consequent upon a violation of his constitutional rights by federal law enforcement officers who were then acting within the scope of their employment or were then acting under color of federal law.
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. On that evening Hernandez overturned a salad tray in the M.C.C. cafeteria during the evening meal. Although the complaint does not recite the events leading up to the initial altercation, statements made at argument on the 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.*fn1 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.*fn2
The complaint focuses on alleged attacks upon him which Hernandez alleges 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 alleged that while bleeding profusely he was deposited in the holding area where he received no medical attention.*fn3
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.*fn4 He seeks $60,000 in compensatory damages jointly and severally from the defendants and $120,000 in punitive damages as well.
The defendants pleaded a general denial to all the allegations of the complaint and also asserted as affirmative defenses that they acted in good faith upon a reasonable belief 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 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.*fn5
After so pleading, defendants moved to dismiss the federal claims for failure to state a claim upon which relief could be granted, and moved for dismissal of the pendent state claims 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.*fn6
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 Federal Tort Claims Act (hereinafter "FTCA") precluded a Bivens remedy. Acknowledging that the FTCA did not set forth a full alternative to a Bivens remedy, the court found that, notwithstanding the alleged inadequacies of the statutory remedy,*fn7 it 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, "[the] 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, 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 .
The preemptive analysis employed by the district court resulted in the dismissal of the complaint without a consideration of the dispositive issue of whether under the facts the plaintiff alleged occurred, he demonstrated he suffered an injury consequent upon the violation of his constitutional rights. Irrespective of the existence of the statutory remedy, a threshold consideration of this issue is necessary in order to ascertain whether a Bivens remedy is available to appellant, in that, implicit in Bivens was a finding that Webster Bivens' fourth amendment rights and been violated. Bivens v. Six Unknown Named Agents of Fed. Bur. of Narc., supra at 403 U.S. 397, 91 S. Ct. 2005. Therefore, in order properly to adjudicate Hernandez' claim we must evaluate the alleged conduct of the appellees and determine whether that alleged conduct constituted a violation of Hernandez' eighth amendment right to be free from cruel and unusual punishment or whether it was, in the alternative, merely an invasion of his state-created rights which are commonly redressed by actions in tort and are cognizable under the FTCA.*fn8 We are of the opinion that the allegations of the complaint sub judice do not rise to the level of a constitutional violation and find that the district court was correct in holding that "the Bivens doctrine does not extend to claims of the sort here pleaded..." We do so because of the paucity of factually essential eighth amendment allegations, which necessitates federal court dismissal.
Our analysis of the present case naturally begins with the Supreme Court's seminal decision in Bivens v. Six Unknown Named Agents of Fed. Bur. of Narc., 403 U.S. 388, 91 S. Ct. 1999 (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.
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 of Fed. Bur. of Narc., 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,*fn9 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 of Fed. Bur. of Narc., 409 F.2d 718 (2d Cir. 1969). On certiorari, the Supreme Court reversed and held, inter alia : "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." (citations omitted) Bivens, supra, 403 U.S. 398, 91 S. Ct. 2005.
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. E.g., Bell v. Hood, 327 U.S. 678, 66 S. Ct. 773 (1946); cf. Jacobs v. United States, 290 U.S. 13 (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 under the fourth amendment with 28 U.S.C. § 1331 as a jurisdictional base, the Court reasoned that although the fourth amendment does not "in so many words provide for its enforcement by an award of money damages for the consequences of its violation," federal courts possess the power to use traditionally available judicial remedies when necessary for redress. Bivens, supra, 403 U.S. 396, 91 S. Ct. 2004, citing Bell v. Hood, 327 U.S. at 684. See also J. I. Case Co. v. Borak, 377 U.S. 426, 84 S. Ct. 1555 (1964).
Urging restraint in the exercise of this inherent remedial power, the government in Bivens argued that a federal damage remedy was unnecessary to enforce the affirmative commands of the fourth amendment. Relying primarily on the availability of state actions in tort, the government reasoned that, where Congress has not expressly authorized a particular remedy, federal courts should imply judicial relief only where the remedy is indispensable or essential for the vindication of the interest protected. The Supreme Court, however, rejected this argument, maintaining that state law remedies might be inadequate inasmuch as "[the] interests protected by state laws regulating trespass and invasion of privacy, and those protected by the Fourth Amendment's guarantee against unreasonable searches and seizures, may be inconsistent or even hostile." Bivens, supra, 403 U.S. at 394, 91 S. Ct. 2003.
In the case sub judice, the government argues that the converse of the position taken in Bivens is applicable because "where Congress has acted to establish a remedial scheme [FTCA], the more general remedies usually available to the courts are foreclosed." The government reasons that in view of the availability of a remedy under the FTCA, the case before us does not arise in the remedial void which caused the Supreme Court to imply ...