King v. USA

REPLY re Response

E.D. Ark.April 19, 2010

The undersigned does not, and may not, represent the individually-named Defendants at1 this time. Once Defendants, sued only in their individual, personal capacities, are served with the Summons and Complaint, they may seek representation from the United States Department of Justice (“DOJ”). The undersigned only represents defendant “United States of America” at this stage of the litigation. 1 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS HELENA DIVISION ALAN R. KING, JR. PLAINTIFF Reg. # 08297-028 V. 2:09CV00163 JMM/HDY UNITED STATES OF AMERICA; DEFENDANTS STEVEN MELTON; T.C. OUTLAW; and ERIC THOMPSON DEFENDANT’S REPLY TO PLAINTIFF’S RESPONSE TO COURT’S ORDER REGARDING FTCA APPLICABILITY NOW COMES the United States of America (“Defendant”), by and through Jane W.1 Duke, United States Attorney for the Eastern District of Arkansas, and Jeffrey P. LaVicka, Assistant United States Attorney for said District, and respectfully brings this Reply, as follows: 1. On March 18, 2010, Plaintiff filed a Motion for Leave to Amend. See Docket Entry (“Doc.”) # 31. Plaintiff sought to add T.C. Outlaw and Eric Thompson as Defendants, in their individual capacity, regarding alleged “constitutional tort claims of deliberate indifference to Plaintiff’s medical needs in violation of the Eighth Amendment of the U.S. Constitution.” Id., ¶¶ 2-3. 2. On March 16, 2010, the Magistrate Judge, citing Johnson v. United States, 534 F.3d 958, 962 (8 Cir. 2008), Ordered the parties to brief their positions regardingth whether Plaintiff may bring a claim of assault and battery under the Federal Tort Case 2:09-cv-00163-JMM-HDY Document 59 Filed 04/19/10 Page 1 of 3 Steven Melton was the only individually named Defendant (in addition to the United2 States of America) when the Court issued this Order. See Doc. # 27 (March 4, 2010 Order allowing Plaintiff to amend his Complaint to add Steven Melton as a defendant). Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). A3 Bivens action is “the federal law analogous to § 1983[.]” Sanchez v. United States, 49 F.3d 1329, 1330 (8 Cir. 1995) (quoting Vennes v. An Unknown Number of Unidentified Agents, 26 F.3dth 1448, 1452 (8 Cir. 1994)). th 2 Claims Act (“FTCA”). See Doc. # 29.2 3. On April 7, 2010, the Court granted Plaintiff’s Motion to amend his Complaint to add T.C. Outlaw and Eric Thompson as individual Defendants, regarding their alleged constitutional violations, supra ¶ 1. See Doc. # 49. 4. On April 7, 2010, Defendant filed a Response, pursuant to the Court’s March 16, 2010 Order, regarding the applicability of the FTCA to Plaintiff’s claims. See Doc. # 46. 5. On April 16, 2010, Plaintiff filed his Response to the Court’s Order regarding FTCA applicability. See Doc. #58. His Response alleges that the FTCA is applicable to his constitutional claims against recently-added defendants T.C. Outlaw and Eric Thompson. See generally id. Plaintiff is incorrect for the following reason, infra, ¶ 6. 6. The FTCA is inapplicable to constitutional torts, and although Plaintiff has added T.C. Outlaw and Eric Thompson as individual capacity defendants, under Bivens,3 he may not seek relief under the FTCA against any of the defendants for any alleged constitutional violations. The FTCA does not waive sovereign immunity for constitutional tort claims. See Washington v. Drug Enforcement Admin., 183 Case 2:09-cv-00163-JMM-HDY Document 59 Filed 04/19/10 Page 2 of 3 3 F.3d 868, 875 (8 Cir. 1999) (“constitutional torts cannot be remedied under theth FTCA”). Respectfully submitted, JANE W. DUKE UNITED STATES ATTORNEY By: /s/ Jeffrey P. LaVicka JEFFREY P. LA VICKA ASSISTANT U.S. ATTORNEY (AR # 2002079) P.O. Box 1229 Little Rock, AR 72203 (501) 340-2600 jeff.lavicka@usdoj.gov ATTORNEY FOR DEFENDANT CERTIFICATE OF SERVICE I hereby certify that on April 19, 2010, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system; and I hereby certify that on April 19, 2010, I mailed the document by United States Postal Service to the following non CM/ECF participant: Alan R. King, Jr., PRO SE Reg. # 08297-028 Terre Haute FCI-Camp P.O. Box 33 Terre Haute, IN 47808 /s/ Jeffrey P. LaVicka JEFFREY P. LA VICKA ASSISTANT U.S. ATTORNEY Case 2:09-cv-00163-JMM-HDY Document 59 Filed 04/19/10 Page 3 of 3