Quiroz v. Hall et al
Filing
144
OPINION AND ORDER: Court GRANTS 133 Defendants' Motion to Dismiss. Signed by Judge William C Lee on 8/9/2013. cc: AUSA US Attorney's Office - Chi/IL (tc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
JOSE QUIROZ,
Plaintiff,
v.
ROBERT HALL, et al.,
Defendants.
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CIVIL NO. 2:12cv212
OPINION AND ORDER
This matter is before the court on a motion to dismiss filed by the defendants Robert Hall,
Lana Sabata, Jessica Salley, Daniel Mitten, Mickey French, David Coulson, Roger Crafton,
Larry Robertson, and Justen Illyes on May 15, 2013. The plaintiff, Jose Quiroz (“Quiroz”), filed
his response on May 31, 2013, to which the defendants replied on July 5, 2013.
For the following reasons, the motion to dismiss will be granted.
Discussion
Quiroz originally filed this case against defendant United States of America pursuant to
the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-80, and against nine law
enforcement agent defendants pursuant to a Bivens theory. On December 3, 2012, the Court
dismissed Quiroz’s FTCA claims against the United States, holding that plaintiff had failed to
state a claim for malicious prosecution pursuant to the applicable Indiana law. The nine
individual law enforcement agents are now seeking dismissal of this action.
Quiroz originally filed this case in the United States District Court for the Northern
District of Illinois (NDIL). After extensive proceedings, including Quiroz’s filing of two
amended complaints, and defendants’ production to plaintiff of voluminous document discovery,
all defendants moved to dismiss Quiroz’s claims in this case, and also moved to transfer the case
to this Court. On April 23, 2012, NDIL granted Quiroz’s motion to transfer the case to this
Court, and declined to rule on the defendants’ pending motion to dismiss.
Quiroz’s Second Amended Complaint alleged that the defendants arrested Quiroz for
drug charges “without a shred of evidence against Mr. Quiroz.” Counts I-IV of Quiroz’s Second
Amended Complaint alleged Quiroz’s Bivens theory of recovery against the nine law
enforcement agent defendants. Count V of Quiroz’s Second Amended Complaint alleged FTCA
claims against the United States. On December 3, 2012, this Court ruled on the substantive
merits of defendants’ motion to dismiss, granting defendant’s motion to dismiss Quiroz’s FTCA
claims against the United States; and denying defendants’ motion to dismiss Quiroz’s Bivens
claims against the nine law enforcement agent defendants. At the time defendants filed their
first motion to dismiss, the motion to dismiss based on the FTCA judgment bar was not ripe.
“[T]he judgment bar can be raised only after a case under the Tort Claims Act has been resolved
in the Government’s favor.” Will v. Hallock, 546 U.S. 345, 354 (2006). Hence, this motion was
not ripe until this Court ruled on the first motion to dismiss on December 3, 2012, and granted
defendants’ motion to dismiss Quiroz’s FTCA claims against the United States. (Docket No.
115, Opinion and Order at 18.)
In support of their current motion to dismiss, the defendants argue that pursuant to the
FTCA judgment bar in 28 U.S.C. § 2676, this Court’s recent dismissal of Quiroz’s FTCA claims
against the United States constitutes a complete bar to Quiroz’s Bivens claims against the nine
law enforcement agent defendants. “If a federal law enforcement officer commits a tort, the
victim has two distinct avenues of relief: he may pursue a constitutional tort claim against the
individual officer under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
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403 U.S. 388 (1971), or he may pursue a common law tort claim against the United States
pursuant to the FTCA, 28 U.S.C. §§ 1346, 2671-80.” Manning v. United States, 546 F.3d 430,
431 (7th Cir. 2008). “The latter avenue is subject to an important caveat. Under 28 U.S.C. § 2676,
a judgment in an FTCA action acts as 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.” Id.
The judgment bar in 28 U.S.C. § 2676 provides, in its entirety, as follows:
The judgment in an action under section 1346(b) of this title 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.
The plain language of this statutory judgment bar is “broad and sweeping,” Rodriguez v. Handy,
873 F.2d 814, 816 (5th Cir. 1989), and the federal courts of appeals have construed the judgment
bar expansively.
The defendants point out that Quiroz’s Bivens claims against the 9 law enforcement agent
defendants arise out of the same subject matter as plaintiff’s FTCA claims against the United
States: the alleged wrongful arrest of plaintiff. Indeed, the Bivens Counts I-IV and the FTCA
Count V in Quiroz’s Second Amended Complaint are based on exactly the same factual
allegations. Compare Docket No. 63, Second Amended Complaint at ¶¶ 28, 32, 36, 41
(incorporating by reference all preceding factual allegations in Bivens Counts I-IV) with Docket
No. 63, Second Amended Complaint at ¶ 45 (incorporating by reference the same preceding
factual allegations in FTCA Count V). It does not matter that the elements of the FTCA claim
differ in some respects from the elements of the Bivens claims; the judgment bar applies because
both actions arise “by reason of the same subject matter.” 28 U.S.C. § 2676; see Arevalo v.
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Woods, 811 F.2d 487, 489 (9th Cir. 1987) (rejecting argument that “‘same subject matter’ means
‘the same claim’”); Rodriguez, 873 F.2d at 816 (“the qualifying clause ‘by reason of the same
subject matter’ is a reference to its factual provenance and not the character of the claim”); Serra
v. Pichardo, 786 F.2d 237, 239 (6th Cir. 1986) (same). Accordingly, the FTCA judgment bar
precludes Quiroz from pursuing his Bivens claims against the individual defendants because
Quiroz’s FTCA claims against the United States that this Court dismissed arose “by reason of
the same subject matter.” 28 U.S.C. § 2676.
The defendants contend that the FTCA judgment bar applies even though the Court ruled
in favor of the United States regarding Quiroz’s FTCA claims. In Hoosier Bancorp of Ind., Inc.
v. Rasmussen, 90 F.3d. 180 (7th Cir. 1996), plaintiff separately filed an FTCA case and a Bivens
case based on the same facts. Id. at 182. On February 10, 1995, the district court dismissed
plaintiff’s FTCA case. Id. at 182-83. On September 29, 1995, the district court dismissed the
Bivens case, holding that the FTCA judgment bar mandated dismissal. Id. at 182-84. Plaintiff
argued that the FTCA judgment bar only should be applied to prevent double recoveries and,
therefore, should not apply to FTCA dismissals in favor of the United States. Id. at 184. The
Seventh Circuit rejected plaintiff’s argument, reasoning that the language of the statutory
judgment bar did not limit the application of the judgment bar to judgments in favor of plaintiffs.
Id. The Seventh Circuit held that “‘any FTCA judgment, regardless of its outcome, bars a
subsequent Bivens action on the same conduct that was at issue in the prior judgment.’” Id. at
185 (original emphasis) (quoting Gasho v. United States, 39 F.3d 1420, 1437 (9th Cir. 1994)).
The defendants further contend that the FTCA judgment bar applies even though Quiroz
brought his FTCA claims and Bivens claims in the same case, and no final judgment has been
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entered in this case. In Williams v. Fleming, 597 F.3d 820 (7th Cir. 2010), plaintiff Jesse
Williams filed a second amended complaint asserting in the same case Bivens claims against
defendant Jerry Fleming, a federal bank examiner, and FTCA claims against defendant United
States alleging that Family Bank’s denials of plaintiff’s loan applications were racially motivated
at the behest of Fleming. Id. at 821. During July 2008, the district court granted the United
States’ motion to dismiss plaintiff’s FTCA claims on the ground that the slander exception to
FTCA’s reservation of sovereign immunity applied. Id. at 821-22. In the same case, several
months later during November 2008, Fleming moved to dismiss plaintiff’s Bivens claims against
him, arguing that the FTCA judgment bar applied based on the district court’s previous dismissal
of plaintiffs FTCA claims. Id. at 822. The district court granted defendant Fleming’s motion to
dismiss, holding that the FTCA judgment bar precluded plaintiff’s Bivens claims against
Fleming. Id. The Seventh Circuit affirmed, holding that the district court’s prior dismissal of
plaintiff’s FTCA claims in the same case was a “judgment” for purposes of the FTCA judgment
bar. Id. at 824. The Seventh Circuit concluded that “the dismissal was on the merits, and the
determination that the judgment bar prevented Williams’s remaining Bivens action was correct.”
Id.
In the case before this Court, as in Williams, Quiroz filed a second amended complaint
asserting both FTCA claims against the United States and Bivens claims against federal
employees. In this case, as in Williams, the district court granted the United States’ motion to
dismiss plaintiff’s FTCA claims. Thus, the judgment bar applies and Quiroz’s remaining claims
must be dismissed.
In response to the motion to dismiss, Quiroz makes the argument that the judgment bar
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does not apply because the dismissal of his claim against the United States was a dismissal for
lack of ripeness, and that dismissals on procedural grounds are not subject to the FTCA
judgment bar. As the defendants point out, however, this Court’s order dismissing the FTCA
claim against the United States was an adjudication on the merits and was also a dismissal with
prejudice.
In its opinion and order dated December 3, 2012, this Court held that Indiana law, as the
law of the place where the alleged malicious prosecution occurred, applied to Quiroz’s FTCA
claim against the United States for malicious prosecution. (Docket No. 115, Order at 16.) This
Court held that, for a malicious prosecution claim to succeed under Indiana law, “the plaintiff
must establish that the dismissal of the underlying charges against him were clearly and
unequivocally terminated in his favor.” Id. at 18. The Court noted that the United States’
dismissal without prejudice of the criminal charges against Quiroz “was not the result of any
determination of the merits of the underlying charges.” Id. Thus, the Court dismissed Quiroz’s
FTCA malicious prosecution claim against the United States, concluding that Quiroz did not
meet the elements of a malicious prosecution claim under Indiana law. Id. In so doing, the Court
did not state that the dismissal was without prejudice. Cf. Fed. R. Civ. P. 41(b) (providing that
unless a “dismissal order states otherwise . . . any dismissal not under this rule–except one for
lack of jurisdiction, improper venue, or failure to join a party under Rule 19–operates as an
adjudication on the merits”). Hence, the Court’s Order operates as a dismissal with prejudice,
and an adjudication on the merits of plaintiff’s substantive FTCA claim, and cannot properly be
characterized as procedural. See Farmer v. Perrill, 275 F.3d 958, 964 (10th Cir. 2001) (holding
that a dismissal with prejudice is an adjudication on the merits which is reviewable only on
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“direct appeal or a Rule 60(a) motion for relief from that judgment”).
It is clear that Seventh Circuit precedent mandates dismissal of this case because
Quiroz’s FTCA case was dismissed on the merits. See Williams v. Fleming, 597 F.3d 820 (7th
Cir. 2010). In this case, as in Williams, the Court dismissed plaintiff’s FTCA claims on the
merits based on non-jurisdictional grounds: specifically, for failure to meet the elements of
plaintiff’s claim for malicious prosecution under the applicable Indiana law. (Docket No. 115,
Order at 18.) Accordingly, the FTCA judgment bar precludes Quiroz’s remaining Bivens
claims against the individual agent defendants.
In any event, all judgments, including dismissals on procedural grounds, are subject to
the FTCA judgment bar. In Sanchez v. McLain, 867 F. Supp. 2d 813 (S.D.W. Va. 2011), a
federal prisoner brought an FTCA claim against the United States and a Bivens claim against a
Bureau of Prisons (BOP) staff physician relating to medical care provided for the federal
prisoner’s knee. Id. at 823. The court dismissed plaintiff’s FTCA claims for failure to file an
administrative tort claim before seeking relief in the district court. Id. The court then held that
the FTCA judgment bar precluded plaintiff’s Bivens claim against the BOP staff physician. Id.
Discussing the language of the FTCA judgment bar in 28 U.S.C. § 2676, the court reasoned that
Congress did not modify, and thus did not limit, the word “judgment” in any manner. Id.; see
also Farmer v. Perrill, 275 F.3d 958, 964 (10th Cir. 2001). The Court observed that one of the
purposes of the FTCA judgment bar was to relieve the government of the “very substantial
burden” of defending repetitive suits and encouraging claimants to bring claims against the
United States rather than individual federal employees. Id. (citations and internal quotations
omitted). The Court concluded that any judgment, including a dismissal for failure to exhaust
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administrative remedies before seeking judicial relief, precluded a Bivens claim based on the
same operative facts. Id.; see also Freeze v. United States, 343 F. Supp. 2d 477, 481 (M.D.N.C.
2004) (holding that the FTCA judgment bar precluded plaintiff’s Bivens claims on the same
operative facts after the court dismissed plaintiff’s FTCA claims for failure to file an
administrative tort claim); Farmer v. Perrill, 275 F.3d 958, 964 (10th Cir. 2001) (holding that any
FTCA judgment, regardless of its basis, “bars Bivens actions arising out of the same subject
matter because Section 2676 does not distinguish among types of judgments”).
Therefore, even if the earlier dismissal were construed as a procedural dismissal, the
FTCA judgment bar is applicable. Accordingly, the defendants’ motion to dismiss will be
granted.
Conclusion
On the basis of the foregoing, the defendants’ motion to dismiss [DE133] is hereby
GRANTED.
Entered: August 9, 2013.
s/ William C. Lee
William C. Lee, Judge
United States District Court
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