ALETA A. TRAUGER, District Judge.
Pending before the court is the plaintiff's Motion for Leave to Amend Complaint (Docket No. 10), to which the government filed a Response in opposition (Docket No. 13), the plaintiff filed a Reply (Docket No. 16), and the government filed a Sur-Reply (Docket No. 19). For the reasons stated herein, the Motion for Leave to Amend will be granted, and the plaintiff will be directed to file an Amended Complaint consistent with this Memorandum.
This case concerns a single incident involving state and local law enforcement officers who served as members of the Fugitive Task Force ("Task Force") of Operation FALCON, a program coordinated by the United States Marshal's Service ("USMS").
On June 22, 2009, nine deputized Task Force members ("Deputized Officers") attempted to serve a subpoena on "Elwood R. Johnson," who was wanted for a probation violation, at plaintiff Bart Pike's address, where the officers believed Johnson had lived five years earlier. (See Docket No. 10, Ex. B at p. 30.) Pike met the Deputized Officers on the porch of his home, where the officers asked if they could enter the residence to search it. Pike requested that the Deputized Officers show him a copy of the warrant, but they refused to provide it. Without Pike's permission, the Deputized Officers forced their way into his residence. Pike explained that he was not Elwood, whose physical description on the warrant did not match Pike, and asked the officers to leave. The Deputized Officers ignored Pike's request and began to "search" his home. While purportedly searching Pike's residence for Elwood, the Deputized Officers destroyed Pike's antique guitar, his TV remote, and a door within the house. They also opened a cremation urn containing Pike's grandmother's ashes and a box containing his father's ashes, to no apparent purpose.
During this incident, a television news crew accompanied the Task Force and, in a news telecast, identified Pike's residence as having been searched by the Task Force. Pike alleges that the unconstitutional search of his home, the negligence of the Task Force members and their supervisors, and the telecasting of the incident severely damaged his reputation, causing him "to be treated as a pariah by many of his friends and associates." (Proposed Am. Compl. ¶ 5.2.) He alleges that the defendants' actions also proximately caused him to suffer the loss of personal possessions and property, public humiliation, pain and suffering, and emotional distress for which he has had to seek professional counseling.
At the time of the incident, Pike did not know the identity of the Deputized Officers who had entered his home. Over the following year, Pike attempted to learn their identities from local, state, and federal authorities through informal letter requests, public records requests, and subpoenas. Exhibit B to the Motion to Amend Complaint contains examples of these efforts, such as letter correspondence and subpoenas to the USMS for documents and testimony. The government has not challenged the accuracy or substance of these materials.
Furthermore, at least one local authority provided inaccurate information that prevented Pike from identifying at least one additional Deputized Officer within one
In the Pike I Complaint, filed within one year of the incident, Pike asserted constitutional claims against Godby and the remaining "Unknown" Deputized Officers for violating his Fourth Amendment rights. (Pike I Docket No. 1.) Pike cited 42 U.S.C. § 1983 as the basis for his cause of action. After the federal government finally released the names of the remaining Deputized Officers on October 28, 2010 — more than one year after the underlying incident and more than 120 days after the Complaint was filed — Pike sought leave of court to file an Amended Complaint that identified the "Unknown" officers by name. (Pike I Docket Nos. 11 (Motion to Amend) and 12 (proposed Amended Complaint).) The court granted that request on December 27, 2011. (Pike I Docket No. 12.)
Several of the newly identified officers moved to dismiss or for judgment on the pleadings, on the basis that the amendments did not relate back to the date of the original Complaint under Fed.R.Civ.P. 15(c) and, therefore, were untimely. (See Pike I Docket Nos. 21-22, 25, 28, 32, 32-34.)
On February 14, 2011, while the motions were pending, Pike filed an administrative claim against the United States. The administrative claim served as a predicate to asserting a claim in court against the United States under the Federal Tort Claims Act ("FTCA").
On February 21, 2011, before Pike's deadline to respond to the pending motions
On October 25, 2011, nine months after voluntarily dismissing the Pike I action, Pike filed the instant lawsuit (Pike II) against the United States.
Pike's Proposed Amended Complaint makes several changes to the Pike II Complaint, only some of which the parties have addressed. The court has identified the following proposed amendments:
The parties have neither acknowledged nor addressed many of the proposed changes to the Complaint, instead focusing on the broader issue of whether Pike may re-assert claims against the Deputized Officers in the first place.
The government vehemently opposes the proposed amendments, contending that they are futile because (a) the claims arise under Bivens, not § 1983; (b) the claims are untimely and are not saved by the "Tennessee Savings Statute," Tenn.Code. Ann. § 28-1-105, because Pike did not assert Bivens claims in Pike I in the first place; and (c) Pike made his "election of remedies" to pursue FTCA claims when he dismissed Pike I.
The court ordered Pike to provide additional information addressing the government's arguments. In his Reply in response to that Order, Pike asserts the following arguments: (1) the court should construe both the Pike I Complaint and the Pike II Complaint as asserting Bivens claims against the Deputized Officers; (2) in furtherance of the broad remedial purposes of the Tennessee Savings Statute, the court should find that the proposed claims are timely; (3) he did not "elect" his remedies through the Rule 41(a) dismissal motion and may pursue both FTCA and Bivens claims in this lawsuit; and (4) he has chosen to re-assert the Bivens claims because (a) pursuant to Milligan, the government may assert a "discretionary function" defense to immunize itself from liability and/or (b) the Bivens claims afford remedies that are unavailable under the FTCA, including punitive damages and the right to a jury trial. As to the basis for seeking to add these claims now, Pike contends that he originally sued the United States in the "belie[f] that an FTCA claim in this case against the United States government would offer a less expensive and more efficient procedure for negotiated settlement." (Id. at p. 6.) However, when he became aware at the initial case management conference that the United States intended to defend the FTCA claim vigorously, he decided to re-assert the Pike I claims against the Deputized Officers.
In its Sur-Reply, the government contends, in relevant part, that Milligan is inapposite and that, unlike in Milligan, the discretionary function defense does not apply to the alleged facts and will not be asserted unless circumstances change.
In general, "[t]he court should freely give leave [to amend] when justice so requires." Fed.R.Civ.P. 15(a)(2) (2011). However, "[a] motion for leave to amend may be denied for futility if the court concludes that the pleading as amended could not withstand a motion to dismiss." Midkiff v. Adams Cnty. Reg'l Water Dist., 409 F.3d 758, 767 (6th Cir.2005) (internal quotation omitted); see also Foman v.
In deciding a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6), the court will "construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff." Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir.2007); Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002). The Federal Rules of Civil Procedure require that a plaintiff provide "`a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (quoting Fed.R.Civ.P. 8(a)(2)). The court must determine whether "the claimant is entitled to offer evidence to support the claims," not whether the plaintiff can ultimately prove the facts alleged. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)).
The complaint's allegations, however, "must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). To establish the "facial plausibility" as required to "unlock the doors of discovery," the plaintiff cannot rely on "legal conclusions" or "[threadbare] recitals of the elements of a cause of action," but, instead, the plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009).
Title 42 U.S.C. § 1983 provides a cause of action for constitutional deprivations arising out of actions taken under color of state law — not federal law. Askew v. Bloemker, 548 F.2d 673, 676-77 (7th Cir.1976). However, a plaintiff may maintain claims for constitutional deprivations arising out of actions taken under color of federal law pursuant to Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The decisional law for § 1983 claims and Bivens claims is essentially the same. Butz v. Economou, 438 U.S. 478, 498-504, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978); Hill v. Lappin, 630 F.3d 468, 471 (6th Cir.2010); Ruff v. Runyon, 258 F.3d 498, 502 (6th Cir.2001); McSurely v. Hutchison, 823 F.2d 1002, 1005 (6th Cir.1987); Garavaglia v. Budde, 43 F.3d 1472, 1994 WL 706769, at *1 n. 1 (6th Cir. Dec. 19, 1994) (table opinion).
Here, Pike's Proposed Amended Complaint alleges constitutional claims against the Deputized Officers under § 1983, even though the officers are alleged to have acted under color of federal law — i.e., they are plainly Bivens claims, not § 1983 claims. See Ellis v. Ficano, 73 F.3d 361, 1995 WL 764127 (6th Cir. Dec. 27, 1995) (table opinion) (where Wayne County law enforcement officers were deputized as DEA Task Force agents, § 1983 did not apply, but "plaintiffs were left with an appropriate avenue of recovery against them under Bivens"); Turk v. Comerford, No. 09-cv-868, 2011 WL 127147, at *7 (N.D.Ohio Jan. 14, 2011) (holding that local law enforcement officers who were deputized as federal officers within an FBI-administered task force could be held liable under Bivens, but not § 1983), reconsidered on other grounds, 2011 WL 1899209 (N.D.Ohio May 19, 2011). In fact,
The government argues that the court should not exercise its discretion to construe either the Pike I claims or the Pike II proposed claims as Bivens claims, essentially because Pike is not proceeding pro se and because, even before filing Pike I, Pike was well aware that the Deputized Officers had acted under color of federal law. The government chiefly relies on Mitchell v. Chapman, 343 F.3d 811, 825 (6th Cir.2003), in which the Sixth Circuit considered the preemptive effect of the plaintiff's Mitchell I lawsuit on a second action (Mitchell II) based on the same facts. In Mitchell I, the plaintiff, a United States Postal Service ("USPS") employee, asserted federal disability discrimination claims against the USPS and the Postmaster General, but did not allege a constitutional claim. Id. at 817. The Mitchell I court granted summary judgment in favor of the defendants. Id. In Mitchell II, based on the same operative facts and well outside of the one-year statute of limitations period, the plaintiff sued the USPS and several new defendants, re-asserting the federal disability discrimination claims and purporting to assert new claims under Title VII, the FMLA, § 1983 (i.e., a constitutional claim that should have been pleaded under Bivens), the Fourteenth Amendment, and the Kentucky Civil Rights Act. Id. at 817-18. On appeal, the Sixth Circuit held that, while the Mitchell I judgment precluded the claims against the USPS and the individual defendants in their official capacities, it did not bar the claims against the individual defendants in their personal capacities. Id. at 824-25.
With respect to these individual capacity claims, the court then considered whether the they were pleaded adequately. Id. at 825. The court observed that the claims actually arose under Bivens, not under § 1983 as improperly alleged in the Mitchell II complaint. Id. Mitchell apparently argued that, under these circumstances, the district court was required to construe the constitutional claims as Bivens claims. The Sixth Circuit disagreed, stating that "[t]here lacks any authority in support of [the plaintiff's] blanket proposition that a court must convert a Section 1983 claim asserted against federal officials to one asserting Bivens violations." Id. (emphasis added). However, the Sixth Circuit did not reach the question of whether the district court could have exercised its discretion to convert the plaintiff's claims under the circumstances, because those claims nevertheless failed on two independent grounds:
Id. (internal citations omitted).
Accordingly, although dicta in Mitchell suggests that district courts are not required to convert Bivens claims, it plainly does not preclude a district court from exercising its discretion to do so. Indeed, courts within and outside of the Sixth Circuit have often exercised their discretion to construe § 1983 claims as Bivens claims (or vice-versa), even where the parties were represented and there was no apparent dispute that the defendants were acting under color of federal law or state law. See, e.g., Ellis, 1995 WL 764127, at *15-*16;
Here, the government justifiably faults Pike's counsel for asserting that the constitutional claims arise under § 1983 on multiple occasions, even though those claims are plainly not cognizable under § 1983 and should have been pleaded as Bivens claims. Nevertheless, until the government's Response was filed on February 23, 2012, it does not appear that any party in Pike I or in Pike I had alerted Pike or the court to this issue. Indeed, in the motions seeking dismissal/judgment in Pike I, none of the moving defendants contended that the Pike I Amended Complaint failed to state a cause of action on the grounds that the claims were not cognizable under § 1983. Presumably, had any of the Deputized Officers moved on these grounds in Pike I, Pike would have urged the court to construe the claims as arising under Bivens and/or sought leave to amend the Pike I causes of action accordingly.
Moreover, whatever the source of the cause of action, the Pike I Complaint, Pike I Amended Complaint, and the proposed Pike II Amended Complaint clearly articulate(d) constitutional claims against the Deputized Officers for Fourth Amendment violations.
For these reasons, the court will construe Pike as having asserted Bivens claims in Pike I and as seeking to re-assert those same Bivens claims now.
Actions premised on federal constitutional claims, whether brought pursuant
The parties disagree as to whether any of the proposed claims against the Deputized Officers are timely. As described in more detail below, the Tennessee Savings Statute, Tenn.Code Ann. § 28-1-105 (2000), permits a plaintiff to revive dismissed claims against a defendant, provided that the claims are re-asserted within one year of a non-merits dismissal. Here, although not precisely articulated in his Response or Reply, Pike appears to rely on the following logic to establish that the constitutional claims against the Deputized Officers are timely:
The court will analyze each of these steps in turn.
As set forth in Analysis Section I above, the court has found that the claims in Pike I (both in the original Pike I Complaint and the Pike I Amended Complaint) and the proposed claims in Pike II are properly construed as Bivens claims.
Only Deputized Officer Godby was named in the Pike I Complaint, which was filed within one year of the June 22, 2009 incident. Thus, there can be no dispute that the constitutional claim against Godby in Pike I was timely and, therefore, subject to the Savings Statute.
The remaining Deputized Officers were added to Pike I in the Amended Complaint. At the time, several of these later-added Deputized Officers argued that the claims against them were untimely because they did not relate back to the original Complaint. However, because the court granted Pike's petition for voluntary dismissal in Pike I before ruling on the
The claims against the Deputized Officers (other than Godby) in Pike I were asserted on December 2, 2011, more than one year after the June 22, 2009 incident. Under Fed.R.Civ.P. 15(c)(3), a claim may relate back to the date of the original complaint under the following conditions:
Within the Sixth Circuit, "[s]ubstituting a named defendant for a `John Doe' defendant is considered a change in parties, not a mere substitution of parties." Cox v. Treadway, 75 F.3d 230, 240 (6th Cir.1996). "Therefore, the requirements of Rule 15(c) must be met in order for the amendment adding the named defendant to relate back to the filing of the original complaint." Id. (affirming dismissal of amended complaint, where plaintiff sought to identify "John Doe" police officers outside one-year statute of limitations).
Here, although the Pike I Amended Complaint allegations concerned the same transaction or occurrence as those asserted in the Pike I Complaint, they do not appear to have otherwise satisfied Rule 15(c), because there is no indication that the Deputized Officers were placed on notice of the action within 120 days from the date the Pike I Complaint was filed.
The fact that the Pike I amendments did not relate back to the date of the Pike I Complaint does not end the court's inquiry into the timeliness of those amendments, however. Even where a plaintiff's proposed amendment does not satisfy Rule 15, the court must look to state law to determine whether the statute of limitations should be tolled and must enforce that law unless it is "inconsistent" with federal law. Tomanio, 446 U.S. at 483-84, 100 S.Ct. 1790. Therefore, here, the court must look to Tennessee tolling law and, if necessary, determine whether application of
Tennessee, unlike many other states and the federal courts, does not recognize the doctrine of equitable tolling in civil cases. Redwing v. Catholic Bishop Diocese of Memphis, 363 S.W.3d 436, 460-61 (Tenn.2012). However, in addition to certain statutory exceptions not applicable here, Tennessee recognizes two other tolling doctrines: equitable estoppel and fraudulent concealment. Id. at 460-61.
The doctrine of equitable estoppel tolls the running of the statute of limitations when the defendant has misled the plaintiff into failing to file suit within the statutory limitations period, such as by making "specific promises, inducements, suggestions, representations, assurances, or other similar conduct ... that the defendant knew, or reasonably should have known, would induce the plaintiff to delay filing suit." Id. Here, the equitable estoppel doctrine is inapplicable because Pike was not induced by the United States or the Deputized Officers into failing to file suit within the statute of limitations — in fact, Pike filed the Pike I lawsuit against Godby and the other Deputized Officers as "John Does" within the one-year statute of limitations.
As to fraudulent concealment, the issue presents a closer question. Prior to the Tennessee Supreme Court's recent decision in Redwing, it appeared that Tennessee only recognized fraudulent concealment where the defendant had concealed the existence of the plaintiff's injury. Id. at 462-63. However, Redwing extended the doctrine to certain "circumstances ... in which the plaintiff is aware that he or she ha[s] been injured but does not know or have reason to know the identity of the person or persons who caused the injury." Id. Thus, as Redwing clarified, "the doctrine of fraudulent concealment applies ... to circumstances in which the defendant engages in conduct intended to conceal the identity of the person or persons who caused the plaintiff's injury from the plaintiff." Id. (emphases added). Specifically, a claim of fraudulent concealment to toll the running of the statute of limitations contains four elements:
A plaintiff asserting the doctrine of fraudulent concealment to toll the running of a statute of limitations must demonstrate that he exercised reasonable care and diligence in pursuing his claim. Id. The statute of limitations is tolled until the plaintiff discovers or, in the exercise of reasonable diligence, should have discovered the defendant's fraudulent concealment or sufficient facts to put the plaintiff on actual or inquiry notice of his or her claim.
Here, Pike appears to have met at least some of the elements of a fraudulent concealment claim. As an initial matter, it is beyond dispute that Pike exercised "reasonable care and diligence" in pursuing his claims against the Deputized Officers: at least as of September 2009 (just three months after the incident), Pike and his counsel initiated a concerted effort to ascertain the identities of the Deputized Officers
The only remaining question is whether the elements articulated in Redwing, which relate to concealment by "the defendant," extend to the circumstances presented in this case. Here, the Deputized Officers' employers (local and state authorities) and the public authority that deputized them (the federal government) — not the Deputized Officers themselves — concealed the identifying information from Pike. Although Redwing does not address this precise issue, it appears to be a logical extension of Redwing to find that fraudulent concealment is applicable here. Because Pike had no way of knowing the Deputized Officers' identities, he sought the information from the public authorities that deputized and/or employed them, which constituted the only practical means of gaining that necessary information. It would be nonsensical and patently unjust to find that claims against the Deputized Officers (other than Godby) were not tolled, simply because it was their employer/deputizing authority that engaged in concealment.
Thus, the court finds that the statute of limitations period relative to the Deputized Officers was tolled under Tennessee law and that, therefore, the Pike I Amended Complaint allegations were timely.
Finally, even if Tennessee law did not permit tolling of the statute of limitations here, the court would find that Tennessee law conflicts with federal law concerning constitutional claims asserted under Bivens. To the extent state tolling law is inconsistent with federal law or policy, the court may impose the federal version of equitable tolling. See Harris v. United States, 422 F.3d 322, 331 (6th Cir. 2005) (citing Wilson v. Garcia, 471 U.S. 261, 266-67, 105 S.Ct. 1938, 85 L.Ed.2d 254 (2005)); Heck v. Humphrey, 997 F.2d 355, aff'd at 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994); see also Lake v. Arnold, 232 F.3d 360, 370 (3d Cir.2000) (collecting cases and stating that, "[w]hen the state tolling rules contradict federal law or policy, in certain limited circumstances we can turn to federal tolling doctrine"). Indeed, in Heck v. Humphrey, which was affirmed by the Supreme
Bivens is supposed to afford aggrieved Tennessee residents (among others) a cause of action for constitutional violations committed under color of federal law. However, if public authorities or officials could simply "run out the clock" on potential Tennessee litigants through bureaucratic evasion — which could be difficult to prove — Bivens would be rendered a nullity. Indeed, to find otherwise here would be patently unjust.
Thus, if Tennessee law did not otherwise toll the statute of limitations with respect to the Pike I amendments under the circumstances presented here, the result would be inconsistent with federal law and imposing federal equitable tolling would be appropriate.
Having determined that the constitutional claims in both Pike I and Pike II are properly construed as Bivens claims and that the claims against all of the Deputized Officers named in Pike I were timely, the court must determine whether the Tennessee Savings Statute "saved" the Bivens claims.
The Savings Statute provides as follows:
Tenn.Code Ann. 28-1-105(a). The Savings Statute expands the time a plaintiff has to refile a claim, when the original complaint and the new complaint allege substantially the same cause of action, which includes identity of the parties. Foster v. St. Joseph Hosp., 158 S.W.3d 418, 422 (Tenn.Ct. App.2004). The purpose of the statute is to provide a diligent plaintiff a chance to renew a suit if it is dismissed other than
Upon re-instituting an action, the plaintiff may exercise all of "the same procedural and substantive benefits which were available at the time of the first action," including the relation back of amendments to the original complaint. See Energy Sav. Prods. v. Carney, 737 S.W.2d 783, 785 (Tenn.Ct.App.1987).
Because Tennessee law favors the resolution of disputes on their merits, the Savings Statute is remedial and should be liberally construed in furtherance of its purpose. Freeman, 2011 WL 1344727, at *4 (citing Balsinger v. Gass, 214 Tenn. 343, 379 S.W.2d 800 (1964)); Energy Sav. Prods., 737 S.W.2d at 785; Foster, 158 S.W.3d at 422; Henley, 916 S.W.2d at 916; Laney Brentwood Homes, LLC v. Town of Collierville, 144 Fed.Appx. 506, 510 (6th Cir.2005).
Here, Pike's voluntary dismissal of the Pike I action was without prejudice and, therefore, the constitutional claims against the Deputized Officers were preserved for one year. Pike initially filed this action against the United States, then filed the Motion for Leave to Amend on February 20, 2012, within one year of the Pike I dismissal. Thus, this case presents a peculiar circumstance: had Pike simply filed this action as to both the United States and the Deputized Officers on February 20, 2012, the Tennessee Savings Statute would plainly apply, because that action was "commenced" within one year of the Pike I dismissal as to the Deputized Officers. However, here Pike filed this action in October 2011 and now seeks to add the Deputized Officers, within one year of his dismissal of Pike I. The Savings Statute applies where a plaintiff "commences a new action" within one year of dismissal of the prior action. Tenn Code Ann. § 28-1-105(a). The question for the court is whether filing the Amended Complaint constitutes "commenc[ing] a new action" for purposes of the Tennessee Savings Statute.
The parties have not identified any case addressing this precise question. However, courts applying the Tennessee Savings Statute generally appear to interpret it expansively in somewhat similar contexts. See, e.g., Energy Sav. Prods., 737 S.W.2d at 785. Here, interpreting the Savings Statute liberally, as it must, the court finds that the proposed Amended Complaint asserts timely claims. Pike met the essential requirements of the Tennessee Savings Statute, which requires him to re-assert the dismissed claims within one year. The court interprets the term "commence a new action" to include re-asserting the cause of action, whether through an independent lawsuit or, as here, through re-asserting the claims in the context of an existing action premised on the same underlying facts. To hold otherwise would frustrate the purposes of the Savings Statute, which encourages the resolution of claims on the merits.
The government argues that Pike's representations in the Pike I voluntary dismissal notice acted as his election of remedies and that his asserted reasons for naming the officers now are unconvincing.
Under 28 U.S.C. § 2676 of the FTCA, a judgment on a claim under the FTCA constitutes "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." Thus, where a judgment is rendered for or against the United States with respect to a plaintiff's FTCA claim, the plaintiff's claims against individual officers arising out of the same subject matter are barred. See Serra v. Pichardo, 786 F.2d 237, 239-42 (6th Cir. 1986); Harris, 422 F.3d at 333-34 ("Courts, including the Sixth Circuit, have consistently read § 2676 to bar a Bivens claim against a government employee `arising out of the same actions, transactions, or occurrences' as an FTCA claim.") Nevertheless, a plaintiff may try both FTCA claims and Bivens claims in the same lawsuit, but may not ultimately recover under both. See Serra, 786 F.2d at 241; Harris, 422 F.3d at 334 ("The [FTCA bar] applies even when the claims were tried together in the same suit and the judgments were entered simultaneously.") (internal quotation marks omitted). By the same token, a judgment in favor of the government bars the further litigation of a Bivens claim premised on the same allegations. See Harris, 422 F.3d at 334-35.
Here, Pike argues that he did not elect his remedies and that the individual claims are important because (1) the government may assert a discretionary function exception to the FTCA claim; and (2) the Bivens claim affords additional remedies and a jury trial right that are not available under the FTCA. Pike acknowledges that, by pursuing the FTCA and Bivens claims simultaneously, he assumes the risk that a judgment on the FTCA claims will bar the Bivens claims.
In response, the government represents that, based on the facts as alleged, it does not intend to assert a discretionary function defense,
The parties have not identified any legal authority concerning the effect of Pike's representations in the Pike I Rule 41 dismissal motion. The court will treat these statements as an expression of counsel's belief, at the time, that asserting claims against the United States under the FTCA was an appropriate means of litigating Pike's claims. However, the court does not regard that representation as having precluded Pike from re-asserting the dismissed claims,
Pike states that he has elected to reassert claims against the Deputized Officers because, at the initial case management conference, it became clear that the government intended to vigorously defend the FTCA claim. The court agrees with the government that this reason is not compelling — it is hardly surprising that the government is choosing to defend this action. Nevertheless, because the claims against the Deputized Officers are timely, Pike is entitled to reassert these otherwise viable claims, and the court will not question his rationale for doing so any further.
Pike will be granted leave to amend his Complaint. However, although facially sufficient for the reasons set forth in the Memorandum, the Proposed Amended Complaint at Docket No. 11 requires several modifications and/or clarifications.
First, as discussed herein, Pike should plead his causes of action against the Deputized Officers as Bivens claims, not § 1983 claims. Second, the proposed Amended Complaint removes the "Negligence" section regarding the FTCA claim against the United States (Compl. ¶ 4) and substitutes it with a "Constitutional Violation" paragraph that appears to relate only to the constitutional claims against the Deputized Officers (Proposed Am. Compl. ¶ 4). Presumably, Pike meant to include both the Negligence paragraph and the Constitutional Violation paragraph in his allegations and should correct this apparent oversight. Third, Pike must clarify the relief he seeks. He will be entitled to a jury trial on the Bivens claims but not the FTCA claim. Also, it is now unclear whether he demands (or could be entitled to) prejudgment interest and/or attorney's fees.
The Amended Complaint shall be filed no later than April 25, 2012. For statute of
In competing footnotes, the parties dispute whether the alleged facts implicate a qualified immunity defense. The United States notes that, if the court were to convert the constitutional claims into Bivens claims — which it has — the United States would "immediately file a Motion to Dismiss based on qualified immunity," because "the search of the plaintiff's home was exceedingly constitutional." (Docket No. 19 at p. 5-6, n. 3.) The court will not address the merits of this argument at this time. Of course, once Pike files his Amended Complaint in compliance with this order, the government and the Deputized Officers will have the opportunity to respond to the amended allegations in accordance with applicable rules.
Pike's Motion for Leave to Amend will be granted. Pike will be permitted to amend his Complaint by April 25, 2012, in a manner consistent with this Memorandum.
An appropriate order will enter.
260 Fed.Appx. at 719.
