Hill v. Fort Leavenworth United States Disciplinary Barracks et al

Filing 14

MEMORANDUM AND ORDER ENTERED: Plaintiff's Motion for Discovery 13 is denied. This case is dismissed as barred by the Feres doctrine. Signed by U.S. Senior District Judge Sam A. Crow on 06/21/17. Mailed to pro se party Steven E. Hill by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

STEVEN E. HILL,
Plaintiff,
v.

CASE NO. 16-3220-SAC-DJW

FORT LEAVEENWORTH UNITED STATES
DISCIPLINARY BARRACKS, et al.,
Defendants.

MEMORANDUM AND ORDER
This matter is a Bivens-type1 civil rights action filed pro se by a prisoner currently
incarcerated at Forrest City FCI in Forrest City, Arkansas. Magistrate Judge Waxse issued a
Notice and Order to Show Cause (Doc. 6) (“NOSC”), ordering Plaintiff to show cause why this
action should not be dismissed as barred by the Feres2 doctrine. Plaintiff filed a Response
(Doc. 12) and a Motion for Discovery (Doc. 13).
I. Nature of the Matter before the Court
Plaintiff’s Complaint is based on an incident that occurred during his transport from the
United States Disciplinary Barrack, Fort Leavenworth, Kansas (“USDB”) by military personnel.
Plaintiff names as defendants USDB and three unknown military soldiers. Plaintiff alleges that
after a series of blackouts and seizures, he was transported by van to the hospital, accompanied
by three unknown military escorts. The military escorts failed to secure Plaintiff with a seatbelt,
and Plaintiff was injured when the driver drove off the road to get around a gate. Plaintiff was
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Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
Feres v. United States, 340 U.S. 135 (1950).
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thrown from one side of the van to the other when the van reentered the paved road. Plaintiff hit
his head, neck and face, but was not checked for a “new concussion.” As Count I, Plaintiff
claims “negligence per se” for failure to properly restrain him or use a seatbelt, failure to stay on
an approved route, and reckless driving. As Count II, Plaintiff alleges “failure to use seatbelt on
defenseless inmate.” As Count III, Plaintiff alleges “failure to stay on approved route” and
reckless endangerment. Plaintiff seeks $50,000 in damages.
II. DISCUSSION
As set forth in the NOSC, because Plaintiff’s apparent status as a military prisoner
dictates that his claims concerning his injuries during transport and the failure to receive medical
care following the incident, arise “incident to military service,” his claims are barred by the
Feres doctrine. See Feres v. United States, 340 U.S. 135, 146 (1950) (holding that the federal
government “is not liable under the Federal Tort Claims Act for injuries to servicemen where the
injuries arise out of or are in the course of activity incident to service”); Chappell v. Wallace,
462 U.S. 296, 305 (1983) (applying Feres doctrine to bar constitutional claims brought pursuant
to Bivens, holding “that enlisted military personnel may not maintain a suit to recover damages
from a superior officer for alleged constitutional violations”); United States v. Stanley, 483
U.S. 669, 681 (1987) (“Today, no more than when we wrote Chappell, do we see any reason
why our judgment in the Bivens context should be any less protective of military concerns than it
has been with respect to FTCA suits, where we adopted an ‘incident to service’ rule.”); Ricks v.
Nickels, 295 F.3d 1124, 1126 (10th Cir. 2002) (rejecting military prisoner’s Bivens claim under
Feres doctrine; plaintiff, although discharged, remained subject to the Uniform Code of Military
Justice); Tootle v. USDB Commandant, 390 F.3d 1280, 1282–83 (10th Cir. 2004) (following
Ricks and concluding that the Feres doctrine barred plaintiff’s claim under Bivens, predicated

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upon the alleged sub-standard medical care treatment he had received while incarcerated at the
USDB).
In his Response, Plaintiff claims that the Court has jurisdiction pursuant to 28 U.S.C.
§ 1346(g), 3 U.S.C. § 401, and 31 U.S.C. § 3723. Section 1346(g) provides that “[s]ubject to the
provisions of chapter 179, the district courts of the United States shall have exclusive jurisdiction
over any civil action commenced under section 453(2) of title 3, by a covered employee under
chapter 5 of such title.” Chapter 5 of title 3 defines a “covered employee” as an employee of the
Executive Office of the President, the Executive Residence at the White House, and the official
residence (temporary or otherwise) of the Vice President. 3 U.S.C. § 401(a). Section 3723
provides that small claims—for not more than $1,000—for privately owned property damage or
loss may be presented to the head of an agency (except a military department of the Department
of Defense or the Coast Guard) for settlement by the agency head. Nothing in Plaintiff’s
Response provides good cause as to why this action should not be dismissed as barred by the
Feres doctrine. Accordingly,
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s Motion for
Discovery (Doc. 13) is denied.
IT IS FURTHER ORDERED that this case is dismissed as barred by the Feres
doctrine.
IT IS SO ORDERED.
Dated in Topeka, Kansas, on this 21st day of June, 2017.

s/ Sam A. Crow
Sam A. Crow
U.S. Senior District Judge

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