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February 22, 2000


The opinion of the court was delivered by: Kimba M. Wood, District Judge.


Pro se plaintiff alleges that federal prison officials used excessive force against him during pre-trial detention, entitling him to monetary relief from the United States pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq., and from individual defendants pursuant to the implied constitutional right of action recognized in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) and its progeny. Defendants move for summary judgment dismissing both claims or, in the alternative, to sever and stay the Bivens action pending trial on the FTCA claim. In a Report and Recommendation (the "Report") dated November 5, 1999, Magistrate Judge Katz recommended that defendants' motion be denied in its entirety because (1) a genuine factual dispute exists as to whether prison officials engaged in conduct constituting excessive force, (2) a genuine factual dispute exists as to whether individual defendants are entitled to qualified immunity, (3) the FTCA waives sovereign immunity as to the alleged conduct, and (4) separate trials of the Bivens and FTCA claims are inappropriate under the circumstances. For the reasons stated below, the Court rejects defendants' objections to Magistrate Judge Katz's thorough and persuasive Report, familiarity with which is assumed, and adopts the Report in its entirety.

I. Discussion

The Court reviews de novo the Report on this potentially dispositive motion. See 28 U.S.C. § 636(b)(1).

A. The Factual Basis of Plaintiff's Bivens Claim

The Court adopts the Report's careful analysis of the competing accounts of the underlying facts and its conclusion that the reasonable inferences most favorable to plaintiff would support a jury finding that (1) the force used went beyond the de minimis level not subject to constitutional scrutiny, and (2) the force was applied with a "sufficiently culpable state of mind . . . characterized by `wantonness'" to violate the Constitution. United States v. Walsh, 194 F.3d 37, 50 (2d Cir. 1999) (setting out standards for excessive force claims by pre-trial detainees) (internal quotation marks and citations omitted). Defendants' objections on these points merely reiterate their view of the facts rather than the reasonable view most favorable to plaintiff.

Individual defendants' objections that they are entitled to qualified immunity as a matter of law are similarly flawed. In this case, the critical issues for qualified immunity purposes are the same underlying factual disputes as those for the excessive force claim itself: (1) did plaintiff resist defendant Abplanalp's attempt to handcuff him, or did Abplanalp physically prevent plaintiff from complying with his orders? (2) did defendants lift plaintiff's body to a forty-five degree angle from the ground by pulling on his wrists handcuffed behind his back and then drop him face-first into the concrete, or did they lift him by his armpits without dropping him? When the availability of qualified immunity turns on the disputed underlying material facts, not on the reasonableness of actions taken in undisputed factual circumstances, "jury consideration is normally required." Oliveira v. Mayer, 23 F.3d 642, 649 (2d Cir. 1994); cf. Lennon v. Miller, 66 F.3d 416, 421 (2d Cir. 1995) (noting that the judge is required "to resolve questions of reasonableness on summary judgment in qualified immunity cases where the material facts are not in dispute"). Were the jury to accept plaintiff's version of the facts, this would be a case in which "no officer of reasonable competence could have made the same choice in similar circumstances," Lennon, 66 F.3d at 420-21, and not one in which individual defendants could have reasonably, but mistakenly, thought their actions lawful. See Oliveira, 23 F.3d at 648-49 (distinguishing between the reasonableness of actions for constitutional liability purposes and the reasonableness of belief in the actions' lawfulness for qualified immunity purposes).

B. The Scope of the FTCA's Waiver of Sovereign Immunity

The Court adopts the Report's thoroughly reasoned conclusion that the FTCA's waiver of sovereign immunity for law enforcement officers' intentional torts is not limited to torts committed in the course of a search, seizure, or arrest. First, the plain language of the provision at issue distinguishes between the acts for which immunity is waived — "assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution" — and the class of persons for whose acts immunity is waived — officers "empowered by law to execute searches, to seize evidence, or to make arrests." 28 U.S.C. § 2680(h); accord Crow v. United States, 659 F. Supp. 556, 570 (D.Kan. 1987); Harris v. United States, 677 F. Supp. 403, 405 (W.D.N.C. 1988). Second, the legislative history makes clear that Congress did not intend to limit the waiver to torts arising from activities subject to Fourth Amendment scrutiny, notwithstanding the fact that the legislation was motivated by particular instances of such activity. See S.Rep. No. 93-588 at 3 (1974), reprinted in 1974 U.S.C.C.A.N. 2789, 2791 (noting that the provision "would submit the Government to liability whenever its agents . . . injure the public through [illegal] search and seizures" but that the "amendment should not be viewed as limited to constitutional tort situations"); Harris, 677 F. Supp. at 404-05; cf. Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 118 S.Ct. 998, 1002, 140 L.Ed.2d 201 (1998) ("[S]tatutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.").

The unpublished opinion in Wood v. United States, No. 92 Civ. 247(JSM), 1993 WL 177821 (S.D.N.Y. May 17, 1993), is not to the contrary. In Wood, Judge Martin ruled that the United States could not be sued under the FTCA for damages arising from a Drug Enforcement Administration ("DEA") investigator's killing of his wife in their home, while off duty, with a privately owned gun, and in the absence of any DEA requirement that he carry a firearm while off duty. Among other reasons, Judge Martin found that there had been no waiver of sovereign immunity and noted the Pooler decision; the opinion, however, does not adopt Pooler but rather notes the "even greater reason" not to apply the law enforcement officer waiver when the tort was committed "by an off-duty agent in his home in the middle of the night." Id. at *1. Wood is therefore entirely consistent with those authorities applying § 2680(h) to torts committed in the course of law enforcement activity without limitation to those committed in the course of search, seizure, or arrest. See generally Employers Ins. of Wausau, 815 F. Supp. 255, 259-60. It is undisputed here that the torts alleged here were committed in the course of individual defendants' employment as law enforcement officers.*fn1

C. Severance of the Bivens and FTCA Claims

The Court adopts the Report's recommendation against severing and staying the Bivens claim pending a bench trial on the FTCA claim. Defendants object to the alleged burdens of trying the claims against all defendants because 28 U.S.C. § 2676 bars recovery against individual defendants once judgment has been entered on the FTCA claim. Defendants, however, fail to articulate the nature of these burdens: because the claims arise from the same set of facts and all defendants are being represented by the same counsel, a trial on one claim is not necessarily less burdensome than two separate trials with duplicative evidence and argument. Severance and trial on the FTCA claim would, however, seriously burden plaintiff's right to a jury trial because the Court would resolve the contested factual issues in the FTCA bench trial. See Fed.R.Civ.P. 42(b) (severance must "preserv[e] inviolate the right of trial by jury"). In the absence of any authority suggesting that § 2676 requires severance of Bivens and FTCA claims alleged together in a single action, the Court concludes that in this case separate trials would neither further convenience nor avoid prejudice; therefore, it declines to sever the two claims for trial. See Fed.R.Civ.P. 42(b).

II. Conclusion

For the reasons stated above, the Court denies defendants' motion for summary judgment in its entirety. A Joint Pre-trial Order is due March 6, 2000.



The defendants have moved for summary judgment on the grounds that the undisputed facts demonstrate that they did not use constitutionally excessive force and, in any event, that the individual defendants are entitled to qualified immunity. Additionally, the defendants contend that plaintiff's FTCA claim against the United States is barred by sovereign immunity. Finally, in the event that these assertions are rejected, the defendants maintain that Ortiz's Bivens claim should be severed and stayed pending the outcome of a bench trial on his FTCA claim. See Defendants' Memorandum in Support of Motion for Summary Judgment ("Defs.Mem."), at 2-3. For the reasons set forth below, I recommend that the defendants' motion for summary judgment be denied. I further recommend that plaintiff's Bivens and FTCA claims not be severed.


I. The Incident

A. Ortiz's Version of Events

On Sunday, September 15, 1996, at about 1:00 p.m., while he was a pretrial detainee at the Otisville Federal Correctional Institution ("Otisville"), Ortiz was subjected to a random pat search by defendant Abplanalp during a "move." See Deposition of Orlando Ortiz ("Ortiz Dep.") at 160, 171, attached as Ex. A to Declaration of Aaron M. Katz, Esq. ("Katz Decl.").*fn1 Following the search, Abplanalp concluded that Ortiz had violated prison rules by carrying a "Walkman" radio allegedly borrowed from his cellmate, and he confiscated the radio. (Ortiz Dep. at 173-78.)

A disagreement ensued. Ortiz evidently believed that Abplanalp should have resolved any concern about the radio by taking Ortiz to his cellmate to confirm its ownership. (Ortiz Dep. at 177-78.) Abplanalp, on the other hand, thought that Ortiz's comments to him were "belligerent" and "disrespect[ful]," that his authority had been compromised, and that he had to "save face." (Deposition of Carl Abplanalp ("Abplanalp Dep.") at 11, ...

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