Opinion
8:99CV441
July, 2000
MEMORANDUM AND ORDER
I. Introduction
Before me is the renewed motion (Filing No. 12) of the defendants John J. Phillips, Jeffrey L. Garrett, and five unnamed individuals to dismiss the amended complaint (Filing No. 11) of David R. Spry pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, Federal Rule of Civil Procedure 12(b)(5) for insufficiency of service of process, and Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. The defendants' renewed motion is supported by a supplemental memorandum (hereafter "Supplemental Memorandum").
I referred the defendants' original motion to dismiss (Filing No. 6) to the magistrate judge (Filing No. 7). The magistrate judge issued orders permitting the plaintiff to submit a brief in response to the defendants' motion (Filing No. 8) and holding the defendants' motion in abeyance pending the submission of an amended complaint (Filing No. 9). Subsequently, the plaintiff filed the amended complaint (Filing No. 11), alleging First and Fifth Amendment violations, violation of 42 U.S.C. § 1985, and defamation under state law. The defendants then filed their renewed motion to dismiss (Filing No. 12) and submitted the supplemental memorandum in support of their motion. After review of the record before me, I now grant the defendants' motion in part and deny it in part.
II. Factual Background
The plaintiff, David R. Spry, filed a pro se complaint (Filing No. 1) on October 25, 1999, alleging that John J. Phillips, Director of the Omaha Veterans Hospital, had taken away Spry's freedom of speech, released confidential medical information, and slandered Spry by telling others that Spry was having sexual relations with hospital employees. The complaint and a summons (Filing No. 2) were issued against Phillips. The United States Attorney filed a motion to dismiss (Filing No. 6) the complaint pursuant to Federal Rule of Civil Procedure 12(b), alleging lack of jurisdiction, insufficiency of service of process, and failure to state a claim for which relief can be granted.
On my referral, the magistrate judge notified (Filing No. 8) the plaintiff that he had twenty days in which to submit a brief in response to the motion to dismiss. The plaintiff retained counsel and filed a memorandum opposing the motion to dismiss. The magistrate judge then ordered (Filing No. 9) that the motion to dismiss be held in abeyance pending the submission of the plaintiff's amended complaint. The plaintiff timely filed an amended complaint (Filing No. 11).
The amended complaint alleges that Spry is a disabled veteran of the Vietnam War who is entitled to receive medical treatment and other services from the Veterans Administration (hereafter "V.A."). Id. at 2. Spry also states that he is not an employee of the V.A. but is involved as a volunteer with groups that serve and advise veterans on decisions that affect their benefits. Id. Spry states that he frequently spends time on the V.A. Hospital campus fulfilling these responsibilities as well as receiving medical treatment and advice for himself. Id. at 3.
Spry alleges that Phillips, the director of the V.A. Hospital and chairman of the Network 14 Area Veterans Committee, used his position to control information reported in these committee meetings so that minutes generally exclude statements and comments critical of Phillips' performance. Id. Spry states that he had criticized Phillips and the V.A. Hospital and has organized other veterans to make similar complaints or demand better service or treatment for the administration of the Omaha V.A. Hospital. Id. Spry states that, in March and April of 1998, he heard rumors that Phillips had begun to question V.A. Hospital employees about Spry's presence at the hospital. Id. Spry claims that the hospital employees were afraid to speak to him about Phillips' questioning out of fear of reprisal from Phillips. Id.
Phillips then sent a letter to Spry notifying him that the investigation had concluded and accusing him of making unwanted advances against female hospital employees, interfering with the investigation by contacting witnesses at their homes, and obtaining confidential information about a V.A. Hospital patient. Id. at 4. Phillips offered to allow Spry to contact Jeffrey L. Garrett, the V.A. Hospital's Chief of Security and codefendant in this case, if Spry wanted to offer any evidence to refute the allegations against him. Id. at 5. The letter also notified Spry that he would not be allowed on the hospital campus unless "accompanied by members of the V.A. police force." Id Spry alleges that he knew that Phillips had reached a conclusion about the investigation and that it was futile for Spry to challenge the findings; Spry then notified Garrett that he did not wish to present any evidence. Id.
Phillips then wrote Spry a second letter notifying Spry of measures that were to be instituted against him. Id. The measures included a ban from the hospital campus unless Spry was there to receive medical treatment, a requirement that Spry contact the V.A. police to arrange for an escort from his car when visiting the hospital, a requirement that the police were to remain with Mr. Spry during his entire visit to the hospital, and a condition that if Spry violated any of these measures, he would be prevented from receiving treatment at the hospital and would not be reimbursed for travel expenses to receive treatment at another location. Id. at 6. As a result of these measures, a V.A. police officer, occasionally a female, is present during all of Spry's activities at the hospital, including discussions of sensitive or highly personal information with his doctor. Id. As a further result of these measures, Spry has had to resign his volunteer positions. Id. Spry also alleges that Phillips, in an effort to justify his actions against Spry, has told many people that Spry is "crazy" and a threat to hospital personnel. Id.
For his causes of action, Spry alleges violation of his First Amendment right of free speech, his Fifth Amendment right to due process, conspiracy to preclude equal protection of the law in violation of 42 U.S.C. § 1985, and state law defamation.
III. Standard of Review Rule 12(b)(1): Subject Matter Jurisdiction_
A federal court must "assure itself that the threshold requirement of subject matter jurisdiction has been met in every case." Med-Tec, Inc. v. Kostich, 980 F. Supp. 1315, 1320 (N.D.Iowa 1997) ( citing Bradley v. American Postal Workers Union, AFL-CIO, 962 F.2d 800, 802 n. 3 (8th Cir. 1992)). A party alleging lack of subject matter jurisdiction under Rule 12(b)(1) must successfully challenge the complaint "on its face or on the factual truthfulness of its averments." Id. at 1321 ( citing Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993)). My consideration, therefore, is limited to a facial examination of the complaint, and "the non-moving party receives the same protections as it would defending against a motion brought under Rule 12(b)(6)." Osborn v. United States, 918 F.2d 724, 729 n. 6 (8th Cir. 1990). A court "accept[s] all of the factual allegations in the Complaint as true and ask[s] whether, under those circumstances, Federal subject matter jurisdiction exists." Farmer v. Jacobsen, 1998 WL 957237, *2 (D.Minn. 1998).
Rule 12(b)(5): Insufficiency of Service of Process_
Federal Rule of Civil Procedure 4(i) requires that a plaintiff in a civil action against the United States deliver a copy of the summons and the complaint to the United States Attorney and the United States Attorney General. Fed.R.Civ.P. 4(1). Failure to do so subjects the complaint to dismissal pursuant to Rule 12(b)(5). Additionally, "[w]hen a plaintiff proceeds against an agent of the government in his or her individual capacity, the plaintiff must effect personal service on that agent in compliance with Rule 4(d)(1)." Despain v. Salt Lake Area Metro Gang Unit, 13 F.3d 1436, 1438 (10th Cir. 1994).
Rule 12(b)(6): Failure to State a Claim Upon Which Relief May Be Granted_
In deciding whether to dismiss a complaint under Rule 12(b)(6), all facts alleged in the plaintiff's complaint are assumed to be true. The trial court then liberally construes those allegations, De Wit v. Firstar Corp., 879 F. Supp. 947, 959 (N.D.Iowa 1995), making all reasonable inferences in favor of the non-moving party, McCormack v. Citibank, N.A., 979 F.2d 643, 646 (8th Cir. 1992). Dismissal is the exception rather than the rule; it occurs "only in the 'unusual case' where the complaint on its face reveals some insuperable bar to relief," De Wit at 959 ( citing Fusco v. Xerox Corp., 676 F.2d 332 (8th Cir. 1982)), such as a missing allegation about an element necessary to obtain relief or an affirmative defense or other bar. See Doe v. Hartz, 134 F.3d 1339, 1341 (8th Cir. 1998). The court does not determine whether the plaintiff will ultimately prevail, but rather whether the plaintiff is entitled to present evidence in support of the claim. Swartzbaugh v. State Farm Ins. Cos., 924 F. Supp. 932 (E.D.Mo. 1995). "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
IV. Discussion Subject Matter Jurisdiction_
The defendants first assert that this court lacks jurisdiction because the United States must waive sovereign immunity in order to be sued. Memorandum in Support of Defendants' Motion to Dismiss at 3 (hereafter "Defendants' Memorandum"). The federal government "enjoys sovereign immunity except to the extent that such immunity has been waived by an act of Congress." Jones v. United States, 16 F.3d 979, 980 (8th Cir. 1994). Sovereign immunity precludes suit against the United States without Congress' consent, the terms of which define the extent of the court's jurisdiction. Loudner v. United States, 108 F.3d 896, 900 (8th Cir. 1997) ( quoting Sisseton-Wahpeton Sioux Tribe v. United States, 895 F.2d 588, 592 (9th Cir. 1990)). The Eighth Circuit has stated that "cases in which the government has not waived its immunity are outside the subject-matter jurisdiction of the district courts." Id. ( citing Sisseton-Wahpeton Sioux Tribe, 895 F.2d at 592).
A. Federal Tort Claims Act
The Federal Tort Claims Act (FTCA) acts as a "limited waiver of sovereign immunity by the United States government which, with exceptions, provides a remedy in tort for persons injured by the negligence of government agents acting in the course and scope of their official duties." Abernathy v. United States, 773 F.2d 184, 187 (8th Cir. 1985). One of the exceptions, however, to the FTCA's waiver of sovereign immunity is for claims of defamation against the federal government. 28 U.S.C. § 2680(h). The Eighth Circuit has ruled that, if substitution of the United States as a defendant is appropriate, claims for defamation must be dismissed because the FTCA does not waive sovereign immunity for such claims. McAdams v. Reno, 64 F.3d 1137, 1144 (8th Cir. 1995).
According to the FTCA, the United States shall be substituted as the party defendant "[u]pon certification by the Attorney General that the defendant employee was acting within the scope of employment at the time of the incident. . . ." 28 U.S.C. § 2679 (d)(2). Further, a district court is not required to hold an evidentiary hearing to determine whether a federal employee was acting within the scope of employment unless material facts concerning the scope of that employment are in dispute. McAdams, 64 F.3d at 1145.
No evidence in the record suggests that the Attorney General of the United States has certified that any of the defendants were acting within the scope of their respective employment at the time of the incidents involved herein. Therefore, the defendants' motion to dismiss is denied as to this portion of the claim. However, if the Attorney General does in the future certify that the defendants were acting within the scope of their employment, the government may then make a motion for summary judgment on this issue, which I will then consider along with any rebuttal evidence that the plaintiff may offer.
B. Bivens
In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme Court recognized a cause of action for money damages against individual federal law enforcement agents for alleged violations of the plaintiff's Fourth Amendment rights. That rule was later extended to violations of the due process clause of the Fifth Amendment in Davis v. Passman, 442 U.S. 228 (1979), and to First Amendment violations in Krueger v. Lyng, 927 F.2d 1050, 1057 (8th Cir. 1991); see also Vennes v. An Unknown Number of Unidentified Agents of the United States, 26 F.3d 1448, 1452 (8th Cir. 1994) (permitting Bivens actions on Fifth Amendment due process grounds in the Eighth Circuit).
Bivens and its progeny do not waive sovereign immunity for actions against the United States; rather, they imply a cause of action only against federal officials. Laswell v. Brown, 683 F.2d 261, 268 (8th Cir. 1982). Not surprisingly, a plaintiff cannot nullify the federal government's sovereign immunity just by naming individual government employees and officers as defendants. Weaver v. United States, 98 F.3d 518, 520-21 (10th Cir. 1996) ( citing National Commodity Barter Ass'n v. Gibbs, 886 F.2d 1240, 1246 (10th Cir. 1989)). Rather, an action is considered to be brought against the federal government when the requested relief would expend the public treasury, interfere with the public administration, or restrain the government from acting or compel it to act. Dugan v. Rank, 372 U.S. 609, 620 (1963) ( quoting Land v. Dollar, 330 U.S. 731, 738 (1947); Larson v. Domestic Foreign Corp., 337 U.S. 682, 704 (1949)).
The Supreme Court has announced "two exceptions to [the Bivens] rule: where Congress has provided an alternative remedy . . . or where there are 'special factors counseling hesitation in the absence of affirmative action by Congress.'" Krueger, 927 F.2d at 1053 (citations omitted). The Eighth Circuit has upheld dismissals of Fifth Amendment claims against the federal government, but has done so only when the plaintiff has other remedies available to him. See Carpenter's Produce v. Arnold, 189 F.3d 687, (8th Cir. 1999) (stating that " Bivens actions are implied causes of action for damages against government officials for constitutional violations where Congress has not specifically provided for such a remedy"); Vennes, 26 F.3d at 1449 (affirming the dismissal of the plaintiff's constitutional claims because they were precluded by the remedies provided by the Internal Revenue Code); and Western States Cattle Co., Inc. v. Edwards, 895 F.2d 438, 441 (8th Cir. 1990) (stating that " Bivens actions are available to remedy the invasion of constitutionally protected rights where other relief is unavailable").
To determine whether a complaint contains an actionable claim for damages under the Constitution, a court must look to see if the complaint presents a constitutionally protected right and then must look to see if the complaint states a cause of action for damages that asserts that right. Bishop v. Tice, 622 F.2d 349, 353 (8th Cir. 1980) ( citing Davis, 442 U.S. at 234). According to the Eighth Circuit, government officials are immune from Bivens suits unless their conduct violates established constitutional rights. Buckley v. Rogerson, 133 F.3d 1125, 1128 (8th Cir. 1998). According to this principle of qualified immunity, "a government official is immune from suit unless the conduct complained of violated 'clearly established statutory or constitutional rights of which a reasonable person would have known.'" Id. ( quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). However, "[i]f the law [is] clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct." Harlow, 457 U.S. at 818-19. The qualified immunity defense is also defeated if the official maliciously intended to cause a loss of constitutional rights or if the official knew or should have known that the action taken within the realm of official responsibility would violate the constitutional rights of the plaintiff. Id. at 818.
In the present case, the plaintiff's amended complaint clearly asserts a First Amendment freedom of speech claim and a Fifth Amendment due process claim against the several named and unnamed defendants (Filing No. 11 at 6). Under Harlow, these assertions are sufficient to allow him to bring his Bivens action. No congressionally-specified remedy exists for actions like the present one, making a Bivens action the proper means to obtain relief. The defendants, government officials, are alleged to have violated the clearly established First and Fifth Amendment rights of the plaintiff, the kind which a reasonable government official would certainly recognize or know about. Additionally, material facts still remain at issue and the plaintiff's allegations, if true, suggest conduct not protected by qualified immunity. Therefore, the Court finds that the plaintiff's complaint is not subject to dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1). The defendants' motion is denied as to this portion of the claim.
C. Pendent Jurisdiction
Spry's defamation claim is a state law claim that would require an exercise of "pendent jurisdiction." Pendent jurisdiction "exists whenever there is a claim 'arising under (the) [sic] Constitution [or] the Laws of the United States . . .,' and the relationship between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional 'case.'" United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966) ( quoting U.S. Const., art. III, § 2). The doctrine of pendent jurisdiction has been defined as "a doctrine of discretion, not of plaintiff's right." Id. at 726. Therefore, a trial court may determine whether it will retain a pendent state law claim. Accordingly, this court retains jurisdiction over Spry's federal constitutional causes of action, and will also retain pendent jurisdiction over his state defamation claim.
Insufficiency of Service of Process_
For their second claim, the defendants state that the plaintiff's service of process upon the United States was insufficient under Federal Rule 12(b)(5) (Defendants' Memorandum at 2). As to this claim, I find that the plaintiff effected service of his amended complaint upon the United States Attorney and the Attorney General of the United States, and that Spry also effected service of the original complaint on the defendant John J. Phillips individually (Filing Nos. 1, 11). The summons issued to the Attorney General of the United States was adequate to correct the insufficiency of service of process alleged by the defendants in their original motion (Filing No. 6). However, I find nothing in the record stating that a copy of either the original or amended complaint was ever issued to defendant Jeffrey L. Garrett individually or to any of the five unnamed defendants. Therefore, I dismiss without prejudice all counts of the complaint as to these six individuals.
Failure to State a Claim Upon Which Relief May be Granted_
A plaintiff is required to make 1) a short, plain statement of the grounds for the court's jurisdiction, 2) a short, plain statement of a claim showing that the plaintiff is entitled to relief, and 3) a demand for judgment for the type of relief that the plaintiff seeks. Fed.R.Civ.P. 8(a). The defendants, citing Conley, note that the complaint must "give the defendant 'fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" Defendants' Memorandum at 4 (quoting Conley, 355 U.S. at 47). However, as noted above, Conley also states that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley, 355 U.S. at 45-46. As also noted above, a court does not determine whether the plaintiff will ultimately prevail, but rather whether the plaintiff is entitled to present evidence in support of the claim. Swartzbaugh v. State Farm Ins. Cos., 924 F. Supp. 932 (E.D.Mo. 1995).
The plaintiff's amended complaint (Filing No. 11) alleges that his constitutional rights have been violated, that a conspiracy to preclude equal protection of the law has been committed against him, and that he has been defamed. The amended complaint also sets forth forty-nine paragraphs of facts in support of the plaintiff's allegations against the defendants. Id. Finally, the amended complaint makes a demand for injunctive and monetary relief. Id. Assuming all these facts to be true and making all reasonable inferences in the plaintiff's favor, I have determined that the plaintiff has set forth sufficient facts to entitle him to proceed with his case against the defendants on his constitutional claims and his defamation claim. Therefore, the defendants' motion is denied as to these claims.
As regards Spry's claim under 42 U.S.C. § 1985, the defendants point out that section 1985 "creates a cause of action only where the alleged conspiracy is motivated by racial or similar class-based discriminatory animus." (Supplemental Memorandum at 10). Indeed, the United States Supreme Court has held that section 1985 claims require "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." Griffin v. Breckenridge, 403 U.S. 88, 102 (1971); see also City of Omaha Employees Betterment Ass'n. v. City of Omaha, 883 F.2d 650, 652 (8th Cir. 1989) (stating that a plaintiff must prove invidiously discriminatory class-based animus), and Deretich v. Office of Admin. Hearings, 798 F.2d 1147, 1153 (8th Cir. 1986) (stating that section 1985 complaints "require an invidious racial or class-based discriminatory animus."). Mr. Spry has not made any showing that he is part of any protected group that would allow him to bring an action under 42 U.S.C. § 1985. Therefore, his complaint is dismissed with prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6), and the defendants' motion is granted as to this portion of the claim.
Veteran's Judicial Review Act
Additionally, the defendants have alleged that the plaintiff's complaint is subject to dismissal under the Veteran's Judicial Review Act. The Veteran's Judicial Review Act was passed by Congress in 1988 to "establish a multi-tiered framework for the adjudication of claims regarding veterans benefits." Beamon v. Brown, 125 F.3d 965, 967 (6th Cir. 1997). The Eighth Circuit has ruled that the Veteran's Judicial Review Act precludes review of benefits determinations, even in cases where the benefits were reduced in violation of the plaintiff's constitutional rights. Hicks v. Veterans Administration, 961 F.2d 1367, 1370 (8th Cir. 1992). In Zuspann v. Brown, 60 F.3d 1156 (5th Cir. 1995), upon which the defendants rely, the Fifth Circuit stated that "Congress passed the Veterans' Judicial Review Act ('VJRA') which clearly announced the intent of Congress to preclude review of benefits determinations in federal district courts." Zuspann, 60 F.3d at 1158.
The magistrate judge noted that Spry had not raised a claim relating to a decision granting or denying benefits or the promulgation of rules or regulations by the Veterans Administration or Mr. Phillips. The plaintiff instead alleges that personnel from the Veterans Administration Hospital have punished him for exercising his constitutional rights. The plaintiff also claims that the defendants have conspired to preclude equal protection of the law in violation of 42 U.S.C. § 1985 and have defamed him. As the magistrate judge found, these claims are not related to benefits determinations. Therefore, I adopt the magistrate judge's recommendation on this issue and find that Spry's complaint is not subject to dismissal pursuant to the Veteran's Judicial Review Act. Therefore, the defendants' motion is denied as to this portion of the claim.
IT IS THEREFORE ORDERED that:
The defendants' motion to dismiss (Filing No. 12) for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) is denied;
The defendants' motion to dismiss for insufficiency of service of process pursuant to Federal Rule of Civil Procedure 12(b)(5) is denied as to the Defendant John R. Phillips;
The defendants' motion to dismiss (Filing No. 12) for insufficiency of service of process pursuant to Federal Rule of Civil Procedure 12(b)(5) is granted without prejudice as to the Defendant Jeffrey L. Garrett and to the five unnamed Defendants listed in the amended complaint;
The defendants' motion to dismiss (Filing No. 12) for failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6) is denied as to the plaintiff's First and Fifth Amendment claims and his state law defamation claim; and
The defendants' motion to dismiss (Filing No. 12) for failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6) is granted as to the plaintiff's conspiracy to preclude equal protection of the law claim under 42 U.S.C. § 1985.
DATED this ___ day of July, 2000.