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Lori M. Kreider v. Detective Roland W. Breault

August 15, 2012


The opinion of the court was delivered by: Yohn, J.


Defendant Detective Roland W. Breault has filed a second motion for summary judgment under Federal Rule of Civil Procedure 56 in this civil-rights action brought against him, the United States of America (collectively, the "federal defendants"),*fn1 and the City of Lancaster. On January 12, 2012, I granted in part and denied in part the federal defendants' first motion for summary judgment. See Kreider v. Breault, No. 10-3205, 2012 U.S. Dist. LEXIS 4268 (E.D. Pa. Jan. 12, 2012). Detective Breault now argues that because I granted summary judgment in favor of the United States with respect to a single count of the complaint-a common law tort claim for intentional infliction of emotional distress-the judgment-bar provision of the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2676, constitutes a complete bar to the remaining constitutional excessive-force claim against him. While I recognize that my decision today stands against a tide of opinions to the contrary, common sense, an ambiguous statute, and the likelihood of an absurd result compel me to deny Detective Breault's motion.

I. Factual Background and Procedural History*fn2

My prior memorandum set forth a detailed account of the facts underlying this lawsuit. Id. at *1-12. This section, therefore, will address only the facts relevant to the disposition of the motion before me.

On May 6, 2007, plaintiff, Lori M. Kreider, was arrested by Detective Breault. Id. at *2. Plaintiff claims that Detective Breault used excessive force in effectuating her arrest and caused her serious and permanent injuries, including trauma to her spine; L4-L5 disc injuries; problems with her bladder; pain at L5-S1; damage to the nerves in her legs and back; arthritis in her back; and pain radiating to her buttocks, legs, and feet; which have required two spinal surgeries to repair.*fn3 Id. at *8-9.

Plaintiff brought a civil action alleging assault and battery (count III) and intentional infliction of emotional distress (count IV) against the United States under the FTCA; excessive force in violation of the Fourth Amendment to the United States Constitution (count I) against Detective Breault;*fn4 and a Monell claim (count II) against the City of Lancaster for failure to properly train and supervise police officers including Detective Breault in the use of force.

On August 9, 2011, the federal defendants filed a motion for summary judgment as to counts I, III, and IV. On January 12, 2012, I denied the motion with respect to counts I and III, but granted it with respect to count IV. I concluded that a rational jury could find Detective Breault's alleged conduct excessive under the Fourth Amendment's "reasonableness standard," Graham v. Connor, 490 U.S. 386, 395 (1989), and that material disputes of fact regarding the extent of the force used by Detective Breault and the circumstances surrounding his use of force precluded summary judgment for the defendant with respect to count I. Kreider, 2012 U.S. Dist. LEXIS 4268, at *21-22. These same factual disputes made summary judgment with respect to the assault-and-battery claim (count III) inappropriate. Id. at *22-23. I did conclude, however, that summary judgment was appropriate on the IIED claim (count IV) because unlike an excessive-force claim and an assault-and-battery claim, which require a showing of unreasonable force, an IIED claim "requires a showing that the defendants acted in a manner so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized society," McGreevy v. Stroup, 413 F.3d 359, 371 (3d Cir. 2005)-too high a hurdle for plaintiff to clear here. Kreider, 2012 U.S. Dist. LEXIS 4268, at *25-26. In addition, summary judgment was warranted with respect to the IIED claim because plaintiff had failed to produce any "objective proof of severe emotional distress," as required under Pennsylvania law. Kazatsky v. King David Mem'l Park, Inc., 527 A.2d 988, 995 (Pa. 1987); see also Bougher v. Univ. of Pittsburgh, 882 F.2d 74, 80 (3d Cir. 1989) ("Pennsylvania requires that competent medical evidence support a claim of alleged intentional infliction of emotional distress."). Thus, I entered judgment in favor of the United States and against plaintiff with respect to count IV of the complaint. Kreider, 2012 U.S. Dist. LEXIS 4268, at *28.

II. Discussion

A motion for summary judgment will be granted only "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Detective Breault argues that because I granted partial summary judgment in favor of the United States with respect to plaintiff's IIED claim, the judgment-bar provision of the FTCA, 28 U.S.C. § 2676,*fn5 constitutes a complete bar to plaintiff's Bivens claim (count I). I do not agree that Detective Breault is entitled to judgment as a matter of law.

It is well established that "[w]hen a federal law enforcement officer commits an intentional tort, the victim has two avenues of redress." Engle v. Mecke, 24 F.3d 133, 135 (10th Cir. 1994) (citing Carlson v. Green, 446 U.S. 14, 20 (1980)). First, "Bivens established that the victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court." Carlson, 446 U.S. at 18. Alternatively, the "FTCA[, which] was enacted long before Bivens was decided, . . . [was] amended . . . in 1974 to create a cause of action against the United States for intentional torts committed by federal law enforcement officers." Id. at 19.

These two causes of action have distinct advantages and drawbacks. First, "[t]he obvious advantage to pursuing an FTCA claim is that payment of a successful claim is assured through the deep pockets of the United States treasury; whereas a successful judgment against an individual defendant may not be satisfied if the defendant lacks sufficient assets." Sanchez v. Felts, No. 07-00355, 2011 U.S. Dist. LEXIS 116295, at *5 (S.D. W. Va. Sept. 23, 2011). "Second, . . . punitive damages may be awarded in a Bivens suit . . . [b]ut punitive damages in an FTCA suit are statutorily prohibited." Carlson, 446 U.S. at 21-22. "Third, a plaintiff cannot opt for a jury in an FTCA action, 28 U.S.C. § 2402, as he may in a Bivens suit." Id. at 22. Given these differences, the Supreme Court has concluded that the FTCA alone "is not a sufficient protector of the citizens' constitutional rights." Id. at 23.

Although an FTCA cause of action and a Bivens cause of action are not mutually exclusive, see Carlson, 446 U.S. at 20 (concluding that it is "crystal clear" that Congress intended the FTCA cause of action and the Bivens cause of action to be "parallel, complementary causes of action"), a plaintiff who pursues both avenues of relief runs "the risk that a judgment on the FTCA claim would nullify the Bivens judgment," Manning v. United States, 546 F.3d 430, 438 (7th Cir. 2008), under 28 U.S.C. § 2676. Section 2676, the judgment-bar provision of the FTCA, provides that "[t]he judgment in an action under . . . [the FTCA] shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim." 28 U.S.C. § 2676. The judgment bar does not prevent a plaintiff from bringing "claims against both the government and the federal officer" but instead "implicate[s] whether one may pursue those claims to judgment." Manning, 546 F.3d at 435; see also Ting v. United States, 927 F.2d 1504, 1513 n.10 (9th Cir. 1991) (stating that section 2676 "imposes an election of remedies").

"The . . . [judgment] bar was conceived by Congress primarily to prevent dual recoveries arising from additional, subsequent litigation," Kreines v. United States, 959 F.2d 834, 838 (9th Cir. 1992), but "Congress also was concerned about the government's ability to marshal the manpower and finances to defend subsequent suits against its employees," Gasho v. United States, 39 F.3d 1420, 1437 (9th Cir. 1994). Thus, section 2676 serves twin purposes: "the prevention of dual recoveries and the prevention of multiple lawsuits." Gasho, 39 F.3d at 1437 (citing Hearings Before the House Committee on the Judiciary on H.R. 5373 and H.R. 6463, 77th Cong., 2d Sess. 9 (1942)).

Detective Breault's sole argument in his second motion for summary judgment is that plaintiff's Bivens claim-count I of the complaint alleging excessive force in violation of the Fourth Amendment to the United States Constitution against Detective Breault-is barred by section 2676. In effect, Detective Breault argues that because his alleged conduct is not "outrageous," "extreme," "atrocious," and "utterly intolerable"-the high standard governing an IIED claim-plaintiff has forfeited any right to proceed against him and show that his actions were nevertheless "unreasonable"-the lesser standard governing her excessive-force claim. In order to reach this conclusion, Detective Breault asks me to accept that the judgment bar "applies regardless of whether plaintiff brings the action against the employee (the Bivens claim) within the same suit as the FTCA claims, or attempts to do so thereafter" (Mem. of Law in Supp. of the Mot. of Fed. Def., Detective Roland W. Breault, for Summ. J. Pursuant to 28 U.S.C. ยง 2676 ("Def.'s Mem.") at 6); that "a Bivens claim regarding the same subject matter is barred ...

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