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VELOZ-GERTRUDIS v. U.S.

June 6, 1991

ALEXIS E. VELOZ-GERTRUDIS, ZENAIDA FIGUEROA VELOZ AND FELICITA GERTRUDIS, PLAINTIFFS,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Raggi, District Judge:

MEMORANDUM AND ORDER

Alexis E. Veloz-Gertrudis, sues the United States under the Federal Torts Claims Act ("FTCA"), 28 U.S.C. § 1346, 2671-2680 (1988), for injuries sustained in a hazing incident aboard the U.S.S. Forrestal. His mother, Zenaida Figueroa Veloz, and his wife, Felicita Gertrudis, also sue for damages related to this incident.

The United States moves to dismiss plaintiffs' complaint, or in the alternative for summary judgment, relying on the principles enunciated in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), and its progeny. For the reasons stated herein, the motion to dismiss is granted.

FACTUAL BACKGROUND

For purposes of considering defendant's motion, the court views all facts in the light most favorable to the plaintiffs.

1. The Hazing Incident

In late November 1989, twenty-year old Alexis Veloz-Gertrudis was assigned to active duty as a Navy Airman Recruit aboard the U.S.S. Forrestal. On the night of January 18, 1990, while the Forrestal was in the Mediterranean Sea, Veloz-Gertrudis was the victim of a hazing incident in the ship's engine room. Senior crewmen tied him up with rope and suspended him upside down from an air pressure valve. He was stripped to the waist and grease was smeared over his stomach. Crew members then took turns slapping him on the stomach and chest. When Veloz-Gertrudis sought to avoid the blows by bringing his knees up to his chest, a crew member yanked on the rope by which plaintiff was hanging, forcing his ankles over the top of the valve. Veloz-Gertrudis heard his ankle "pop" and began screaming with pain for the men to stop. Instead, the crewmen continued to strike him, one delivering a series of particularly hard blows in purported retaliation for plaintiff's attempt to kick him.

2.  The Subsequent Altercation and Its Report to Navy
    Authorities

When Veloz-Gertrudis was finally released, an altercation ensued between him and one of the men involved in the hazing, in the course of which plaintiff was punched in the face and neck. A short time later, in another part of the ship, the same crewman charged at Veloz-Gertrudis. Plaintiff tried to defend himself, grabbing a screwdriver from a nearby locker. The crew member nevertheless succeeded in throwing Veloz-Gertrudis to the deck. While other crewmen held plaintiff face down, the original assailant jumped repeatedly on Veloz-Gertrudis' back.

Subsequently, Veloz-Gertrudis was summoned to a meeting with three participants in the original engine room hazing. Plaintiff overheard them agree not to report the incident in light of their personal involvement. One of the men did authorize Veloz-Gertrudis to go to the ship's medical unit, but stressed that he should tell the examining doctor that his injuries had been sustained falling down a ladder. Because he was afraid, Veloz-Gertrudis agreed to lie.

The severity of plaintiff's injuries required his transfer to a Navy hospital. Upon learning that he would be leaving the Forrestal, and after speaking to the ship's priest, Veloz-Gertrudis told senior officials the truth about what had happened.

Thereafter, Veloz-Gertrudis was treated at a military hospital in Spain and at a facility in Jacksonville, Florida.*fn1 He suffered, inter alia, two broken vertebrae, severe post-traumatic stress disorder and an ankle injury. He has been found permanently disabled by the Navy and his discharge application is pending.

3. The Internal Investigation

Because hazing is strictly prohibited by the Navy, an internal investigation of the events of January 18, 1990 was conducted. That investigation revealed that plaintiff was an unwilling participant in the hazing. It was also determined that other unauthorized "initiations" had taken place in the past on the Forrestal. As a result, several participants in the January 18, 1990 hazing were disciplined. Moreover, certain officers were reinstructed regarding the rules ...


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