Delbert INGRAM, Plaintiff-Appellant, v. Hashib D. FARUQUE, M.D.; Yan Feng, M.D.; David Wood, Donna Delise; Kyle Inhofe; Lt. Michael Stevenson; Captain Tim Collins; Department of Veteran Affairs, Defendants-Appellees.
No. 11-6341.
United States Court of Appeals, Tenth Circuit.
Sept. 6, 2013.
1239
DISMISSED.
Suzanne Mitchell, Assistant United States Attorney (Sanford C. Coats, United States Attorney, and Laura M. Grimes, Assistant United States Attorney, with her on the brief), Oklahoma City, OK, for Defendants-Appellees.
Before MATHESON, EBEL, and MURPHY, Circuit Judges.
EBEL, Circuit Judge.
INTRODUCTION
Plaintiff-Appellant Delbert Ingram appeals from a district court‘s dismissal of his claims against Defendants-Appellees (“Defendants“).1 Mr. Ingram sued Defendants-Appellees—Dr. Hashib D. Faruque, Dr. Yan Feng, Donna Delise, Kyle Inhofe, Lt. Michael Stevenson, and Captain Tim Collins—claiming that Defendants had violated his rights under the Fourth and Fifth Amendments of the U.S. Constitution by holding him in a psychiatric ward for over twenty-four hours without his consent. Defendants filed motions to dismiss, arguing that, among other things, the district court lacked subject matter jurisdiction over the action, because the Federal Tort Claims Act (“FTCA“) provided the sole remedy for Mr. Ingram‘s claims, and that the court therefore should not authorize a judicial remedy under Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).
The district court agreed that it lacked subject matter jurisdiction over Mr. Ingram‘s claims, and therefore granted Defendants’ motions to dismiss. Specifically, the court concluded that Mr. Ingram had a remedy available under
Having jurisdiction under
BACKGROUND
I. Factual Background
Mr. Ingram is an employee at the Oklahoma City Department of Veterans Affairs Medical Center (“VAMC“). At the time of the incidents resulting in this appeal, VAMC police received a report from one of Mr. Ingram‘s coworkers, stating that Mr. Ingram had said that he had been thinking about killing his supervisor. Defendant Captain Collins (VAMC‘s Assistant Chief of Police) reported the threat to Dr. Nasreen Bukhari (not a party to this action), who recommended that Mr. Ingram receive a psychiatric assessment. Dr. Bukhari informed Defendant Inhofe (VAMC‘s Chief of Human Resources) and Defendant Delise (VAMC‘s Acting Assistant Director) of the situation. Mr. Inhofe and Ms. Delise decided to talk to Mr. Ingram about the reported threat and ask him to go to the Emergency Room for evaluation, in accordance with Dr. Bukhari‘s instructions. Mr. Ingram agreed to go to the emergency room with Mr. Inhofe and Ms. Delise. Captain Collins directed Defendant Lt. Stevenson (a VAMC police officer) to escort Mr. Inhofe, Ms. Delise, and Mr. Ingram to the emergency room.
In the emergency room, Mr. Inhofe and Ms. Delise accompanied Mr. Ingram to a padded isolation room. Subsequently, another physician, Dr. Karunesh Singhal (not a party to this action) filled out an affidavit stating that Mr. Ingram “has threatened to assault his supervisor and in my evaluation is having homicidal ideation,” and that on that basis, Mr. Ingram was sufficiently ill “that immediate emergency action [was] necessary.” Aplt.App. at 78. When Mr. Ingram attempted to leave the emergency room, Lt. Stevenson informed him that, although he was not under arrest, he was not free to leave the emergency room. Mr. Ingram asserts that Lt. Stevenson said this “with his hand on his firearm,” and that after making this statement, Lt. Stevenson shut and locked the door to the isolation room. Aplt. Br. 4.
Mr. Inhofe and Ms. Delise waited with Mr. Ingram until Defendant Dr. Faruque (a VAMC staff psychiatrist) arrived. After Dr. Faruque arrived, he examined Mr. Ingram. During the examination, Mr. Ingram admitted saying something about “doing foolish things to [his supervisor],” but denied having the intent to hurt or kill her. Aplt.App. at 104. Dr. Faruque‘s report following the examination recommended “[i]npatient admission to provide safe environment and further assessment.”3 Aplt.App. at 104. Mr. Ingram
After arriving in the psychiatric ward, Defendant Dr. Feng (another VAMC staff psychiatrist) interviewed Mr. Ingram for the inpatient admission evaluation. Mr. Ingram denied making threats about his supervisor and stated that he wished to leave the hospital. But Dr. Feng informed Mr. Ingram that “because of the report of the threat and the Third Party Affidavit [signed by Dr. Singhal], [she] was obligated to conduct an investigation to determine whether he and other people would be safe if he were discharged from the hospital.” Id. at 106. She told Mr. Ingram that he could voluntarily sign himself in for assessment, or that she would initiate the paperwork to obtain an Emergency Order of Detention.
After this conversation, Mr. Ingram agreed to admit himself to the hospital, and signed a voluntary consent form. But subsequently, although he repeatedly requested to leave, Mr. Ingram was held in the psychiatric ward for over twenty-four hours before being medically cleared and released.
II. Procedural Background
Mr. Ingram subsequently filed an action against Defendants in their individual capacities. He asserted that they had collectively violated his rights under the Fourth and Fifth Amendments by detaining him against his will, and he sought a remedy. Defendants filed motions to dismiss, arguing that, among other things, the court lacked subject matter jurisdiction over Mr. Ingram‘s claims. See
A primary argument of the Defendants was that Mr. Ingram should not be permitted to pursue a cause of action under Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), because under the VA Immunity Statute, the FTCA provided the sole remedy for his claims. The district court agreed, concluding that Mr. Ingram‘s claims fell under the VA Immunity Statute, and that he therefore could not bring an action under Bivens. Accordingly, it ruled that it lacked subject matter jurisdiction over Mr. Ingram‘s claims, and dismissed the claims against all Defendants without prejudice. Within thirty days, Mr. Ingram filed a motion for reconsideration, which was denied by the district court. Mr. Ingram timely appeals.
STANDARD OF REVIEW
DISCUSSION
In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the U.S. Supreme “Court recognized for the first time an implied private action for damages against federal officers alleged to have violated a citizen‘s constitutional rights.” Ashcroft v. Iqbal, 556 U.S. 662, 675, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). In Bivens, the Court “held that a victim of a Fourth Amendment violation by federal officers may bring suit for money damages against the officers in federal court.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001) (citing Bivens, 403 U.S. 388, 91 S.Ct. 1999). Following Bivens, the Supreme Court has authorized actions under Bivens on only two occasions: first, the Court authorized a cause of action under Bivens to redress a violation of the equal protection component of the Due Process Clause of the Fifth Amendment, see Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), and second, the Court authorized a Bivens remedy for the estate of a prisoner who had allegedly died as the result of government officials’ deliberate indifference to his medical needs, in violation of his rights under the Eighth Amendment, see Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980).
But since the Supreme Court‘s last decision to authorize a Bivens remedy in 1980, the Court has “refused to extend Bivens liability to any new context or new category of defendants.” Malesko, 534 U.S. at 68, 122 S.Ct. 515. Indeed, even though the “Court has had to decide in several different instances whether to imply a Bivens action[,] ... in each instance it has decided against the existence of such an action.” Minneci v. Pollard, — U.S. —, 132 S.Ct. 617, 622, 181 L.Ed.2d 606 (2012).
The standards for determining whether a Bivens remedy is appropriate have evolved over time. In Green, the Court explained that a Bivens action is available unless (1) “defendants demonstrate special factors counseling hesitation in the absence of affirmative action by Congress,” or (2) “defendants show that Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective.” 446 U.S. at 18-19, 100 S.Ct. 1468 (emphasis omitted). But since Green, the Supreme Court has relaxed these requirements, and has declined to fashion a Bivens remedy, even where statutory remedies may not be equally effective.
For instance, in Bush v. Lucas, the Court explained that the question whether a Bivens cause of action is available “cannot be answered simply by noting that existing remedies do not provide complete relief for the plaintiff.” 462 U.S. 367, 388, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983). In
Similarly, in Schweiker v. Chilicky, the Court stated that “[t]he absence of statutory relief for a constitutional violation ... does not by any means necessarily imply that courts should award money damages against the officers responsible for the violation.” 487 U.S. 412, 421-22, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988). Indeed, the Court held that “the concept of ‘special factors counseling hesitation in the absence of affirmative action by Congress’ has proved to include an appropriate judicial deference to indications that congressional inaction has not been inadvertent.” Id. at 423, 108 S.Ct. 2460. Accordingly, it declined to authorize a Bivens remedy to address the improper denial of Social Security disability benefits, id. at 414, 91 S.Ct. 1999, even though the Court acknowledged that “Congress ha[d] failed to provide for ‘complete relief,‘” id. at 425, 91 S.Ct. 1999, and “[t]he creation of a Bivens remedy would obviously offer the prospect of relief for injuries that must now go unredressed,” id.
Consistent with Bush and Schweiker, in its recent jurisprudence, the Supreme Court has generally prescribed two steps to apply when determining whether to recognize a Bivens remedy. See Wilkie v. Robbins, 551 U.S. 537, 550, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007); accord Minneci, 132 S.Ct. at 623. First, “[t]here is the question whether any alternative, existing process for protecting the interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages.” Wilkie, 551 U.S. at 550, 127 S.Ct. 2588. Second, “even in the absence of an alternative, a Bivens remedy is a subject of judgment;” and therefore “the federal courts must make the kind of remedial determination that is appropriate for a common-law tribunal, paying particular heed ... to any special factors counseling hesitation before authorizing a new kind of federal litigation.” Id.
In determining whether there is a Bivens remedy available to Mr. Ingram, we will first consider whether the VA Immunity Statute provides an alternative, existing process that amounts to a convincing reason to refrain from creating a new Bivens remedy. We conclude that it does; specifically, we hold that the text of the VA Immunity Statute creates an exclusive remedy that precludes a Bivens claim. We then consider whether Mr. Ingram‘s claims fall within the scope of the VA Immunity Statute, such that he is precluded from bringing a cause of action under Bivens. We conclude that they do. Mr. Ingram therefore may not pursue a cause of action under Bivens. Accordingly, we need not consider whether there are other “special factors counseling hesitation before authorizing” a Bivens remedy. See id.
I. The VA Immunity Statute Provides an Alternative, Existing Process That Precludes a Bivens Remedy
Mr. Ingram argues that he should be allowed to pursue a cause of action under
A. The VA Immunity Statute
As context for analyzing the VA Immunity Statute, “[t]he doctrine of sovereign immunity prohibits suits against the United States except in those instances in which it has specifically consented to be sued.” Fent v. Okla. Water Res. Bd., 235 F.3d 553, 556 (10th Cir.2000) (internal quotation marks omitted). “The FTCA constitutes a limited waiver of the federal government‘s sovereign immunity from private suit.” Estate of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840, 852 (10th Cir.2005). “When federal employees are sued for damages for harms caused in the course of their employment, the [FTCA] generally authorizes substitution of the United States as the defendant.” Hui v. Castaneda, 559 U.S. 799, 130 S.Ct. 1845, 1848, 176 L.Ed.2d 703 (2010) (citation omitted). And “[t]he prerequisite for liability under the FTCA is a ‘negligent or wrongful act or omission of any employee of the [Government] while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.‘” Id. at 1853 n. 38 (quoting
The VA Immunity Statute applies the remedy available against the United States under the FTCA to damages arising from the provision of medical services by health care employees of the VA. See
The remedy ... against the United States provided by sections
1346(b) and2672 of title 28 ... for damages for personal injury, including death, allegedly arising from malpractice or negligence of a health care employee of the Administration in furnishing health care or treatment while in the exercise of that employee‘s duties in or for the Administration shall be exclusive of any other civil action or proceeding by reason of the same subject matter against the health care employee (or employee‘s estate) whose act or omission gave rise to such claim.
There are some exceptions to the FTCA‘s waiver of sovereign immunity. Specifically,
shall not apply to ... [a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights....
The exception provided in section
2680(h) of title 28 shall not apply to any claim arising out of a negligent orwrongful act or omission of any person described in subsection (a) in furnishing medical care or treatment (including medical care or treatment furnished in the course of a clinical study or investigation) while in the exercise of such person‘s duties in or for the Administration.
B. The VA Immunity Statute Provides an Exclusive Remedy
We now consider whether the VA Immunity Statute provides an alternative, existing process that amounts to a convincing reason to refrain from creating a new Bivens remedy. We conclude that the Statute provides an exclusive remedy that precludes the creation of a remedy under Bivens.
In our analysis, there are two relevant provisions of the VA Immunity Statute at issue—
1. Section § 7316(a)(1)
The Supreme Court has determined that language similar to that contained in
The remedy against the United States provided by sections
1346(b) and2672 of Title 28 ... for damage for personal injury, including death, resulting from the performance of medical, surgical, dental, or related functions, including the conduct of clinical studies or investigation, by any commissioned officer or employee of the Public Health Service while acting within the scope of his office or employment, shall be exclusive of any other civil action or proceeding by reason of the same subject-matter against the officer or employee (or his estate) whose act or omission gave rise to the claim.
As background, in Hui, a man was detained by U.S. Immigration and Customs Enforcement at the San Diego Correctional Facility. 130 S.Ct. at 1848. While there, he sought a biopsy for a lesion, but a biopsy was never provided. Id. at 1848-89. After his release from prison, later biopsy results confirmed that the detainee was suffering from cancer, and after unsuccessful treatment, he died. Id. at 1849.
Before his death, the detainee brought a cause of action under Bivens, suing PHS personnel for a violation of his constitutional rights. Id. at 1849. PHS personnel moved to dismiss on the grounds that ”
The Supreme Court reversed the Ninth Circuit‘s decision, holding that the text of
In this case, the language of
By its terms, § 233(a) limits recovery for such conduct to suits against the United States. The breadth of the words “exclusive” and “any” supports this reading, as does the provision‘s inclusive reference to all civil proceedings arising out of “the same subject-matter.”
130 S.Ct. at 1851. The same is true here; the wording of
Mr. Ingram argues the Supreme Court‘s holding in Carlson v. Green requires that he be allowed to proceed with a cause of action under Bivens. In Green, a respondent sued on behalf of her deceased son‘s estate, alleging that he had died from injuries inflicted by federal prison officials in violation of his rights under the Eighth Amendment. 446 U.S. at 16, 100 S.Ct. 1468. In authorizing a cause of action under Bivens, the Court rejected prison officials’ argument that the remedy available under the FTCA precluded respondent‘s Bivens claim. Id. at 19-20, 100 S.Ct. 1468. Although both Green and Mr. Ingram‘s case involve the question whether the remedy available under the FTCA precludes a Bivens claim, Green does not control this case.
Green‘s claim against federal prison officials for alleged violations of his Eighth Amendment rights did not implicate the VA Immunity Statute. Thus, the Court in Green was not considering the VA Immunity Statute when it determined that the FTCA did not foreclose a cause of action under Bivens. And, the Supreme Court recognized in Hui that some statutory provisions may make the FTCA an exclusive remedy, such that it is not appropriate for courts to authorize a cause of action under Bivens. 130 S.Ct. at 1848. Thus, although there may be circumstances where the availability of a remedy under the FTCA may not foreclose a Bivens action, Green, 446 U.S. at 19-20, 100 S.Ct. 1468, other statutory provisions relating to the FTCA do preclude such a remedy. The Supreme Court has held that one such provision is
2. Section § 7316(f)
In Franklin, we previously considered the purpose and effect of subsection (f). Specifically, we explained that, prior to the amendment of the VA Immunity Statute to include subsection (f), “in circumstances where the government‘s waiver of sovereign immunity was excluded by § 2680(h) and, therefore, the injured party had no possible remedy under the FTCA, a cause of action against the responsible health worker could be maintained.” Id. at 1500.
This had created a difficulty, because, depending on state law, malpractice actions might be based on a theory of negligence or a theory of battery. See id. And unless a statutory exception applies, a person cannot bring a claim for battery under the FTCA.
For many years, VA medical personnel have been protected from personal liability in medical malpractice actions arising out of allegedly negligent conduct in the furnishing of medical care or treatment to veterans. However, the Government does not extend this immunity to actions arising out of intentional conduct—so-called “intentional torts.” In some instances, State law characterizes an act of medical malpractice as an intentional tort, leaving VA medical personnel potentially liable for an action for which the law intends the Government to assume liability. As an example, if a patient consents to an operation on his left elbow, but the physician mistakenly operates on the right elbow, responsibility for this action would lie with the United States. However, if the suit was based on a theory that a battery occurred, which is defined as any contact with a person without that person‘s con-
sent, the Government is not allowed to assume the employee‘s liability. In essence, State law, which controls the character of the action brought against VA medical personnel, could defeat the intent of the Federal law to provide such employees with immunity.
Id. at 1500 (quoting H.R.Rep. No. 100-191, 100th Cong., 2d Sess. 19 (1988), reprinted in 1988 U.S.C.C.A.N. 432, 450).
Although Congress was specifically concerned with medical battery, the remedy available under
In sum,
For the foregoing reasons, we conclude that there is an adequate alternative remedy available under the VA Immunity Statute; indeed, the Statute provides an exclusive remedy that precludes a cause of action under Bivens for claims that fall within the scope of the Statute. Accordingly, we now consider whether Mr. Ingram‘s claims fall within the scope of the VA Immunity Statute.
II. Mr. Ingram‘s Claims Fall Within the Scope of the VA Immunity Statute
Mr. Ingram argues that his claims do not fall within the scope of the VA Immunity Statute for two reasons. First, he contends that the VA Immunity Statute is not implicated, because his claims do not arise from malpractice or negligence. Specifically, he “alleges that his confinement was not the result of medical evidence, evaluation or opinion, but instead was a result of intentional acts of Defendants unrelated to any medical opinion of physicians.” Aplt. Br. at 13. Second, he also argues that Defendants are not qualified for immunity under the Statute because they do not fall within the definition of “other supporting personnel.”
As background, Mr. Ingram alleges in his complaint that he was “wrongfully and unlawfully detained and held in the psychiatric ward as a result of the actions of
As to Mr. Ingram‘s first argument, it is plain that his claims fall within the scope of the VA Immunity Statute. As discussed above, the VA Immunity Statute immunizes VA health care employees for “damages ... allegedly arising from malpractice or negligence of a health care employee of the [VA],”
As to Mr. Ingram‘s second argument, we conclude that the district court did not err in determining that the Defendants were immune to suit as “health care employee[s]” within the meaning of the VA Immunity Statute.
the term “health care employee of the Administration” means a physician, dentist, podiatrist, chiropractor, optometrist, nurse, physician assistant, expanded-function dental auxiliary, pharmacist, or paramedical (such as medical and dental technicians, nursing assistants, and therapists), or other supporting personnel.
Mr. Ingram argues that Defendants are not “other supporting personnel,” but we need not consider that argument as to Defendants Dr. Faruque and Dr. Feng, because both doctors are “physicians“—specifically, VAMC staff psychiatrists. The district court found that the actions of both Dr. Faruque and Dr. Feng
were actions relevant to the provision of medical care[,] ... that each action was undertaken based on decisions and information pertinent to Defendants as a
result of their specialized education and training in the field of medicine/psychology[,] ... [and] that their contact with Plaintiff arose as a result of the need for an evaluation by a medical professional.
Aplt.App. at 167. We agree. Because both doctors are physicians and their interactions with Mr. Ingram were in the scope of their duties and in the course of furnishing medical care, see
As to the other Defendants, the district court determined that they were acting as supporting personnel to medical providers in their interactions with Mr. Ingram.
physician, dentist, podiatrist, chiropractor, optometrist, nurse, physician assistant, expanded-function dental auxiliary, pharmacist, or paramedical (such as medical and dental technicians, nursing assistants, and therapists), or other supporting personnel.
Id. (emphases added). Thus, employees of the VA may be “health care employee[s]” under the statute if they are employed as one of the listed types of medical personnel, or if they are providing support to such medical personnel. See id. And for other supporting personnel to qualify for immunity under
Here, the district court found that “[b]ut for the perceived need to provide medical care to Plaintiff in the form of psychiatric care, neither Defendants Stevenson nor Collins would have had any contact with Plaintiff.” Similarly, it found that “Defendants DeLise‘s [sic] and Inhofe‘s interaction with Plaintiff arose solely at the behest of or in support of the medical personnel who were evaluating Plaintiff‘s condition.” Aplt.App. at 170. Viewing the evidence in the light most favorable to the district court‘s ruling, the court‘s findings regarding the interactions between Mr. Ingram and Defendants Delise, Inhofe, Stevenson, and Collins were not clearly erroneous. Rio Grande Silvery Minnow, 599 F.3d at 1175. Each of these Defendants testified that he or she was acting within the scope of his or her duties and pursuant to instructions from medical personnel. Accordingly, the record before the district court supports that these Defendants interacted with Mr. Ingram only to provide support to medical personnel in furnishing medical care to Mr. Ingram.
Mr. Ingram‘s sole argument as to why Defendants could not have been other “supporting personnel,” is that they were acting under the direction of Dr. Bukhari, and Mr. Ingram contends that Dr. Bukhari did not “t[ake] any action that could give rise to a malpractice claim.”6 Aplt. Br. at 16. Mr. Ingram misses the point. Dr. Bukhari is not a party to this action, and it is irrelevant whether Mr. Ingram‘s allegations would give rise to a cause of action
In sum, Mr. Ingram‘s claims fall within the scope of the VA Immunity Statute, and the Defendants fall within the Statute‘s definition of health care employees. And because we hold that the FTCA provides an alternative, existing process for addressing Mr. Ingram‘s interests that is exclusive of any other cause of action arising from the same subject matter, Mr. Ingram may not pursue a cause of action under Bivens. For that reason, the district court did not err in concluding that it lacked subject-matter jurisdiction to consider Mr. Ingram‘s claims.
CONCLUSION
Mr. Ingram has an alternative, existing process for protecting his interests available through the VA Immunity Statute. And the language of the Statute provides for an exclusive remedy that precludes Mr. Ingram from pursuing a cause of action under Bivens. Because Mr. Ingram‘s claims fall within the scope of the VA Immunity Statute, we AFFIRM the district court‘s decision concluding that it lacked subject matter jurisdiction and dismissing Mr. Ingram‘s claims without prejudice.
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