AL-KASSAR v. BUREAU OF PRISONS et al.

Filing 103

ENTRY DENYING MOTION FOR PARTIAL STAY OF PROCEEDINGSAND DIRECTING FURTHER PROCEEDINGS - The Court agrees that a Pavey hearing will likely present complicated logistical issues and a great deal of expense for the parties and the Court, but Defendant s are the ones who have asserted that affirmative defense. There is no basis to potentially preclude the plaintiff from litigating his Bivens claims simply because Defendants' exhaustion defense is a burden for Defendants to litigate. Defenda nts' motion for partial stay of proceedings, dkt. 96 , is denied. Defendants shall have January 24, 2020, in which to notify the Court of their decision to either a) proceed with a Pavey hearing, or b) withdraw the exhaustion defense. (See Entry.) Copy to plaintiff via US Mail. Signed by Judge James Patrick Hanlon on 12/20/2019. (RSF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
MONZER AL-KASSAR,

)
)
Plaintiff,
)
)
v.
)
)
S. JULIAN Warden, FCC-Terre Haute,
)
FNU RIGSBY Captain, FCC Terre Haute,
)
M. SAMPLE,
)
CLINT SWIFT Case Manager, FCC-Terre Haute, )
CMU,
)
EVELYN KELLER Intelligence Research
)
Specialist, FCC-Terre Haute CMU,
)
FNU RODRIGUEZ Lieutenant, FCC-Terre Haute, )
ROBERT ROLOFF Chaplain, FCC-Terre Haute, )
FNU MCCOY C/O, FCC-Terre Haute,
)
FNU DUBBINS C/O, FCC-Terre Haute,
)
CORY MILLER C/O, FCC- Terre Haute,
)
FNU SULLIVAN C/O, FCC-Terre Haute,
)
FRANK HART C/O, FCC-Terre Haute,
)
AMY ADAMS Recreation Supervisor, FCC-Terre )
Haute,
)
UNITED STATES OF AMERICA,
)
)
Defendants.
)

No. 2:18-cv-00086-JPH-DLP

ENTRY DENYING MOTION FOR PARTIAL STAY OF PROCEEDINGS
AND DIRECTING FURTHER PROCEEDINGS
In the Entry of June 21, 2019, the Court granted in part and denied in part Defendants’
motion for summary judgment on the issue of exhaustion. Dkt. 94. Defendant Keller was granted
summary judgment on the retaliation claim, Claim Three of the Bivens claims. Id. The motion for
summary judgment was denied with respect to the issue of exhausting the plaintiff’s Federal Tort
Claims Act, 28 U.S.C. §§ 1346, 2761-80 (FTCA) claims. Id. The motion for summary judgment
was also denied with respect to Claims One and Two of the plaintiff’s Bivens claims. Id. As a

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result of these rulings, the Court held that a hearing pursuant to Pavey v. Conley, 544 F.3d 739
(7th Cir. 2008), would be set to resolve the issue of exhaustion on the Bivens Claims One and Two.
On July 19, 2019, Defendants moved to stay the plaintiff’s Bivens claims pending the
resolution of his FTCA claims on the merits because preparing for and participating in the intended
Pavey hearing will be inconvenient and costly. Dkt. 96. They point out that the parties and nonparties may have to travel far distances to testify and that the plaintiff and three of his witnesses
are incarcerated in USP-Marion in Illinois. Defendants assert that the plaintiff’s Bivens and FTCA
claims are based on the same actions or occurrences.
Defendants argue that if the FTCA claims are adjudicated first and somehow do not also
dispose of the Bivens claims, the plaintiff “would have lost nothing; the Court could simply lift
the stay and proceed with the Pavey hearing at that time.” Dkt. 96 at 3, ¶ 7.a.

But “an FTCA

judgment bars a Bivens claim raised in the same suit,” Manning
v. United States, 546 F.3d 430, 434 (7th Cir. 2008), when, as Defendants acknowledge, the claims
are of the “same subject matter,” 28 U.S.C. § 2676. The FTCA judgment bar provides in full:
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.
Id.
In essence, Defendants are asking the plaintiff to forego his option to litigate both FTCA
and Bivens claims through trial and then withdraw his FTCA claim to avoid the judgment bar on
his Bivens claims, if that decision presents itself. See Manning, 546 F.3d at 435 (“We do not think
it unreasonable to require a plaintiff that moved for judgment on a successful Bivens claim to
decide whether or not it makes sense to voluntarily withdraw a contemporaneous FTCA claim.”).
The judgment bar would apply whether an FTCA judgment favored the plaintiff or the United
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States. Id. at 433. If the plaintiff were to lose on his FTCA claim, he will have lost the opportunity
to litigate his Bivens claims. Id. at 434. (plaintiffs “who choose to pursue both avenues of relief
must assume the risk that a Bivens judgment would be nullified by § 2676.”). “[B]ecause of the
broad language of the judgment bar, plaintiffs must make strategic choices in pursuing the
remedies.” Id. at 435 (emphasis added). The plaintiff opposes the motion to stay. Dkt. 99. He states
that he is aware of the judgment bar and that at some point he will have to decide which theory he
wishes to take to judgment. Id.
In his opposition to Defendants’ motion for partial stay, the plaintiff points out that there
are a number of statutory defenses available to Defendants under the FTCA that are not available
to them under Bivens. Dkt. 99 at 2-3. He states that he would be “willing to dismiss his Bivens
claims at this stage of the proceeding,” and thereby avoid the Pavey hearing, if Defendants waive
any statutory defenses, including those in 28 U.S.C. § 2680. Dkt. 99 at 3. Defendants replied by
arguing that the statutory defenses question “is a non-issue,” dkt. 100, because “the judgment bar
provision ‘shall not apply’ to the categories of claims in the ‘Exceptions’ section of the FTCA.”
Simmons v. Himmelreich, 136 S. Ct. 1843, 1849 (2016). Defendants assert that even if the United
States successfully asserted a statutory defense to the FTCA claims, the judgment bar would not
apply and the plaintiff could still pursue his Bivens claims against the individual defendants. Dkt.
100 at 1. “The dismissal of a claim in the ‘Exceptions’ section signals merely that the United States
cannot be held liable for a particular claim; it has no logical bearing on whether an employee can
be held liable instead.” Simmons, 136 S. Ct. at 1849. “The judgment bar provision…does not apply
to the categories of claims in the ‘Exceptions’ sections of the FTCA.” Id. at 1850.

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While Defendants’ assertion, that the judgment bar does not apply to the § 2680 defenses,
is true, the bottom line is that they have not agreed to waive any statutory defenses. Therefore, the
plaintiff’s conditional offer to dismiss (or defer) his Bivens claims has been rejected.
The Court agrees that a Pavey hearing will likely present complicated logistical issues and
a great deal of expense for the parties and the Court, but Defendants are the ones who have asserted
that affirmative defense. There is no basis to potentially preclude the plaintiff from litigating his
Bivens claims simply because Defendants’ exhaustion defense is a burden for Defendants to
litigate. Defendants’ motion for partial stay of proceedings, dkt. [96], is denied.
Defendants shall have January 24, 2020, in which to notify the Court of their decision to
either a) proceed with a Pavey hearing, or b) withdraw the exhaustion defense.
SO ORDERED.

Date: 12/20/2019

Distribution:
MONZER AL-KASSAR
61111-054
MARION
U.S. PENITENTIARY
P.O. BOX 1000
MARION, IL 62959
Lara K. Langeneckert
UNITED STATES ATTORNEY'S OFFICE (Indianapolis)
[e-mail]

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