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April 26, 2002


The opinion of the court was delivered by: McMAHON, U.S.D.J.


In this action, Willie Hightower ("Hightower"), a federal employee with the Department of Veterans Affairs ("VA"), seeks money damages from the United States, and the three individual defendants, based on alleged injuries sustained from mace or pepper spray used against him in the course of his arrest on April 26, 1999. He was arrested after he was stopped on the Montrose VA Hospital campus for driving his automobile in a reckless manner.

As a federal employee, plaintiff applied for and received benefits under the Federal Employee's Compensation Act, 5 U.S.C. § 8101, et seq., ("FECA") for the injuries he sustained as a result of the April 26, 1999 incident. In order to obtain those benefits, Hightower affirmatively represented to the Secretary of Labor that they had been sustained in the course of duty. Notwithstanding plaintiffs recovery under FECA, he now seeks to collect additional monies from the United States and/or the individual defendants under state law tort (malicious prosecution, slander, libel and intentional infliction of emotional distress) pursuant to the Federal Tort Claims Act, 28 U.S.C. § § 1346, 2671-2680 ("FTCA"). He also asserts constitutional claims (excessive force, and false arrest) presumably under Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971) ("Bivens").

Defendants argue that because the allegations of the complaint expressly allege that the individual defendants were acting within the scope of their federal employment at all times relevant to the complaint, any state law tort claims for malicious prosecution, slander, libel or intentional infliction of emotional distress against them must be dismissed as a matter of law, since the FTCA expressly immunizes them from such claims. See 28 U.S.C. § 2679 (b). They further argue that plaintiff cannot recover against the United States under the FTCA because he has already successfully received benefits on his FECA claim. See 5 U.S.C. § 8116 (c). Their final argument is that even if this Court had jurisdiction to hear plaintiffs state law tort claims against the United States under the FTCA, the FTCA does not waive the United States' sovereign immunity for claims of slander and libel. See 28 U.S.C. § 2680 (h). Defendants argue that the Court therefore is without subject matter jurisdiction over plaintiffs state law tort claims (reflected in the Second, Fifth, Sixth and Seventh Causes of Action), and these claims must be dismissed in their entirety.

Although the complaint indicates that plaintiffs constitutional claims purport to be brought under 42 U.S.C. § 1983 and/or the New York State Constitution, they are properly construed as Bivens claims for violations of the United States Constitution, because the defendants are all federal employees acting under federal law. Defendants argue that to the extent plaintiffs constitutional claims (the First, Third and Fourth Causes of Action) might be construed as asserting a claim for money damages against the United States itself or the individual defendants in their official capacities for excessive force or false arrest in violation of the Fourth Amendment, and maintenance of an official custom or policy that violated plaintiffs constitutional rights, the claims cannot survive this motion, because the United States has not waived its sovereign immunity for such Bivens claims. Defendants assert that the comprehensive schemes Congress has established for federal employees, i.e., the FECA and the Civil Service Reform Act ("CSRA"), are the kind of "special factors" that weigh against the recognition of a private constitutional remedy against the individual defendants in their individual capacities for excessive force and false arrest (the First and Third Causes of Action). Bivens, 403 U.S. at 396.


A. Plaintiff's Arrest and Criminal Trial

Thereafter, plaintiff alleges that Bunce called for assistance from Porter and Mackin, and that "one or more of the individual defendants applied excessive force in effecting his arrest "by grabbing the plaintiff at his shirt collar, grabbing and/or pulling the plaintiff by his left upper extremity, impeding the plaintiff from ambulating forward, spraying the plaintiff with MACE and/or pepper spray, handcuffing the plaintiff and arresting him." See Complaint ¶ 15. Once plaintiff cooperated, he was issued three United States District Court Violation Notices for: (1) Assaulting, Resisting, or Impeding Certain Officers or Employees in Violation of 18 U.S.C. § 111 ("Assaulting, Resisting or Impeding a Federal Officer"); (2) Disorderly Conduct in Violation of 38 C.F.R. § 1.218 (b)(11); and (3) Operation of Vehicle in Reckless or Unsafe Manner, in Violation of 38 C.F.R. § 1.218 (b)(33) ("Reckless Driving"), see Weiner Decl. ¶ 5; United States District Court Violation Notices (Violation Nos. V526079-081) (copies of which are attached as Ex. B to Weiner Decl.).

On June 24, 1999, plaintiff was charged in a three-count misdemeanor complaint filed in this Court charging him with: (1) Assaulting, Resisting or Impeding a Federal Officer (Count One); (2) Disorderly Conduct (Count Two); and (3) Reckless Driving (Count Three). See Decision at 1 (Weiner Decl., Ex. C). By an Amended Superceding Complaint filed on July 29, 1999, Counts One and Three were dismissed by operation of law, leaving the single count of disorderly conduct in violation of 38 C.F.R. § 1.218 (a)(5) ("Disorderly Conduct") to be tried. See id. On August 10, 1999, plaintiff was tried in a bench trial before the Honorable Martin R. Goldberg on a single count of Disorderly Conduct. See id. at 2. Plaintiff, Bunce and Mackin testified at trial. See id. at 3, 5, and 7. On September 13, 1999, the Court found plaintiff "Not Guilty" of the Charge of Disorderly Conduct, but also concluded that "[i]t's the Court's belief that the Defendant, Willie Hightower, was late for work and was probably annoyed that he was being stopped and questioned by the police and delayed from work and was probably further annoyed that the police were preventing him from signing in, thereby causing him to be tardy or late for work." See id. at 13.

B. Plaintiff's Remedies As a Federal Employee

1. FECA Claim

2. FTCA Claim

On November 20, 2000, more than a year after plaintiff was notified that his FECA Claim had been accepted by the Secretary of Labor, plaintiff, with the assistance of his current counsel, filed his Claim for Damage, Injury, or Death (Standard Form 95) (the "FTCA Claim") seeking approximately $1,000,000 in damages based on the injuries he allegedly sustained as a result of his arrest by VA police at the Montrose Campus of the VA Hudson Valley Health Care System on April 26, 1999. See FTCA Claim (a copy of which is attached to the Complaint and for the Court's convenience may also be found as Ex. G to the Weiner Decl.). In his FTCA Claim, plaintiff alleges that:

The incident giving rise to this claim occurred at the Montrose Veteran's Administration Hospital Montrose, New York at or near Parking Lot "B" and was caused by the unlawful, reckless intentional acts, excessive force, malicious prosecution, assault, battery, false arrest and/or negligent acts of Officer John Bunce and Officer Robert Porter, all in violation of claimant's civil rights and liberties; the Fourth Fifth and Fourteenth Amendments of the United States Constitution; the New York Constitution; the New York State Executive Law Section 296; and 42 U.S.C. § 1981, 1983 and 1985.

See FTCA Claim (Weiner Decl., Ex. G) at Box No. 8 "Basis of Claim."

Plaintiff claimed that the following injuries were sustained as a result of his April 26, 1999 arrest:

Chemical burn to scalp; scabs and lesions to left side of head/scalp; scar tissue to both eyes; blurred vision in both eyes; need for change of eyeglasses prescription; excessive dryness in both eyes; excessive tearing in both eyes; chemical trauma to eyes and ...

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