612 F.

2d 61

Nelson HERNANDEZ, Plaintiff-Appellant,

v.
C. LATTIMORE, Nathaniel Mitchell, Hugh Herbert, N.
Avignone,
and R. Brown, Correctional Officers, Metropolitan
Correctional Center, Defendants-Appellees.
No. 351, Docket 78-2098.

United States Court of Appeals,

Second Circuit.
Argued Nov. 14, 1978.
Decided Dec. 6, 1979.

John Boston, New York City (William E. Hellerstein and Robert B.

Shapiro, The Legal Aid Society, Prisoners' Rights Project, New York
City), for plaintiff-appellant.
Kent T. Stauffer, Asst. U. S. Atty., New York City (Robert B. Fiske, Jr.,
U. S. Atty., S. D. N. Y., and Patrick H. Barth, Asst. U. S. Atty., New York
City, of counsel), for defendants-appellees.
Before WATERMAN and TIMBERS, Circuit Judges, and NICKERSON,
District Judge.*
WATERMAN, Circuit Judge:

Plaintiff appeals from a judgment entered in the United States District Court for
the Southern District of New York, (Brieant, District Judge), dismissing his
complaint for failure to state a claim upon which relief could be granted and for
lack of subject matter jurisdiction. In his complaint plaintiff sought to recover
damages for alleged injuries caused by excessive and unnecessary force applied
to him by the defendants, federal correctional officers, while he was an
incarcerated prisoner. He relied upon the authority of Bivens v. Six Unknown
Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), his claim
being that he suffered cruel and unusual punishment despite the protection

guaranteed him by the Eighth Amendment. To this constitutional claim

plaintiff appended a state law assault and battery claim. The court below
decided that the constitutional remedy provided for in Bivens against the
individual officers had been preempted by the amendment to the Federal Tort
Claims Act (FTCA) adopted subsequent to the events in Bivens, by which, 28
U.S.C. 2680(h), on March 16, 1974, the government had waived its sovereign
immunity for assaults and batteries. Accordingly, the court below granted
summary judgment in favor of defendants, thereby dismissing plaintiff's Bivens
action in light of its finding that there was now a full and adequate remedy
against the government itself available to the plaintiff under the FTCA. Having
thus disposed of plaintiff's constitutional claim, the court below also dismissed
plaintiff's pendent state law claim on the ground of a lack of subject matter
jurisdiction. We reverse the judgment dismissing plaintiff's complaint and
remand the cause for further proceedings below inasmuch as we expressly find
that the existence of the FTCA provision does not preempt a Bivens action.
2

This litigation is based on events that took place on the evening of October 4,
1976, at the Metropolitan Correctional Center (M.C.C.) in New York City,
where Hernandez was incarcerated. According to information elicited in the
district court proceedings, on that evening Hernandez overturned a salad tray in
the M.C.C. cafeteria during the evening meal. Although the complaint does not
recite the events leading up to the initial altercation, statements made at
argument on the defendants' motion to dismiss indicated that by overturning the
salad tray Hernandez was protesting a correctional officer's failure, or refusal,
to supply him with silverware to replace the plastic utensils that were
available.1 Shortly after dinner was served Hernandez returned to his cell. He
alleges that soon after his return defendants Lattimore, Mitchell, Herbert,
Avignone and Brown visited his cell, allegedly conducted a "strip-search," and
later escorted him fully clothed into an elevator which deposited him at a thirdfloor holding area.2

The complaint focuses on alleged attacks upon him which Hernandez claims
occurred while en route to the holding area. Hernandez charges that, while
surrounded by defendants Mitchell, Herbert, Avignone, and Brown, he was
punched about the face and body by defendant Lattimore, and kicked by an
unidentified defendant. Hernandez insists that these attacks occurred without
provocation or because of any disobedience to orders. The complaint further
alleges that while bleeding profusely he was deposited in the holding area
where he received no medical attention.3

As a result of the actions of the correctional officers, Hernandez asserts that he

sustained injuries to his face, mouth, and body, as well as his psyche.

Hernandez charges that the conduct of the defendant officers amounted to a

violation of his Eighth Amendment right to be free from cruel and unusual
punishment and constituted assault and battery under state law as well. He
seeks $60,000 in compensatory damages jointly and severally from the
defendants and an additional $120,000 in punitive damages.
5

The defendants pleaded a general denial to all the allegations of the complaint
and also asserted as affirmative defenses that their conduct was lawful; that the
court lacked subject matter jurisdiction; and that plaintiff failed to state a claim
upon which relief could be granted. Additionally, defendant Lattimore
affirmatively pleaded self-defense, and he counterclaimed for $5,000
compensatory damages and $10,000 in punitive damages for assault and battery
by plaintiff upon him.4

After so pleading, defendants moved to dismiss the federal claim for failure to
state a claim upon which relief could be granted, and moved for dismissal of
the pendent state claim for lack of federal court subject matter jurisdiction.
Inasmuch as there was a consideration of matters outside the pleadings, the
motion for dismissal was treated by the district court as a motion for summary
judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.5

The district court, although recognizing that a private damage remedy may be
implied directly from the Constitution under Bivens, supra, and its progeny,
concluded that the availability of a "full and adequate" remedy under the FTCA
precluded a Bivens remedy. Acknowledging that the FTCA did not set forth a
full alternative to a Bivens remedy, the court found that the alleged
inadequacies of the statutory remedy6 did not deprive Hernandez of an
efficacious vehicle for the vindication of his federally secured rights under the
Eighth Amendment. As stated by the district court, "(t)he Federal Tort Claims
Act, . . . provides the very remedy that Mr. Hernandez seeks, and which was
not then available to Webster Bivens money damages." In reliance, therefore,
on the existence of an alternative specific statutory remedy,7 the district court
determined that, pursuant to the FTCA, Hernandez' federal rights could be fully
redressed, and so refused to imply a constitutional remedy under Bivens.

Our review of the district court's judgment dismissing plaintiff's complaint

naturally begins with the Supreme Court's seminal decision in Bivens v. Six
Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971),
wherein the Court held that a cause of action for damages against federal law
enforcement officers who violate the Fourth Amendment could be inferred
directly from provisions of the U.S. Constitution.

On the morning of November 26, 1965, Webster Bivens' apartment was entered
by agents of the Federal Bureau of Narcotics, who, acting under the cloak of
federal authority, and without probable cause or warrant, caused Bivens to be
arrested for alleged narcotics violations. The complaint filed against Bivens
was, however, subsequently dismissed by the United States Commissioner.
Bivens brought an action against the individual officers, seeking $15,000
jointly and severally in compensatory damages. The complaint alleged that the
arrest and events preceding his arrest had caused Bivens great humiliation,
embarrassment, and mental suffering. The district court dismissed the
complaint for lack of federal jurisdiction. Bivens v. Six Unknown Named
Agents, 276 F.Supp. 12 (E.D.N.Y.1967). We affirmed the district court and,
despite recognition that an action for trespassory damages should be
maintainable in federal courts,8 determined that, in view of the availability of
injunctive relief, the exclusionary rule, and state law tort actions for the
vindication of Bivens' rights, another judicially created damage remedy was not
indispensable to the effectuation of the Fourth Amendment protections. Bivens
v. Six Unknown Named Agents, 409 F.2d 718 (2d Cir. 1969). On certiorari, the
Supreme Court reversed and held, Inter alia :

10 question is merely whether petitioner, if he can demonstrate an injury

The
consequent upon the violation by federal agents of his Fourth Amendment rights, is
entitled to redress his injury through a particular remedial mechanism normally
available in the federal courts. . . . Having concluded that petitioner's complaint
states a cause of action under the Fourth Amendment, we hold that petitioner is
entitled to recover money damages for any injuries he has suffered as a result of the
agents' violation of the Amendment.
11

Bivens, supra, 403 U.S. at 397, 91 S.Ct. at 2005 (citations omitted).

12

The holding in Bivens represented the first judicial recognition of a cause of

action implied directly under a constitutional provision. Up until the Bivens
Decision litigants armed only with the general jurisdictional statute, 28 U.S.C.
1331, were relatively unsuccessful in utilizing the positive law of the
Constitution as a vehicle to force affirmative action. See, e. g., Bell v. Hood,
327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946); Cf. Jacobs v. United States,
290 U.S. 13, 54 S.Ct. 26, 78 L.Ed. 142 (1933) (Fifth Amendment: just
compensation).

13

The keystone of the Bivens decision was the Court's recognition that the
commands of the Fourth Amendment created an affirmative federal right to be
free from unreasonable searches and seizures, a right which could be redressed
in money damages even in the absence of explicit congressional action

authorizing the remedy. In fashioning a remedy for Bivens directly under the
Fourth Amendment with 28 U.S.C. 1331 as a jurisdictional base, the Court
reasoned that although the Fourth Amendment does not "in so many words
provide for its enforcement by an award of money damages for the
consequence of its violation," federal courts possess the power to use
traditionally available judicial remedies when necessary for redress. Bivens,
supra, 403 U.S. at 396, 91 S.Ct. at 2004, citing Bell v. Hood, 327 U.S. 678,
684, 66 S.Ct. 773, 90 L.Ed. 939 (1946). See also J. I. Case Co. v. Borak, 377
U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964).
14

Urging restraint in the exercise of this inherent remedial power, the government
in Bivens argued that a federal damage remedy was unnecessary to enforce the
affirmative commands of the Fourth Amendment. Relying primarily on the
availability of state actions in tort, the government reasoned that, where
Congress has not expressly authorized a particular remedy, federal courts
should imply judicial relief only where the remedy is indispensable or essential
for the vindication of the interest protected. The Supreme Court, however,
rejected this argument, maintaining that state law remedies might be inadequate
inasmuch as "(t)he interests protected by state laws regulating trespass and
invasion of privacy, and those protected by the Fourth Amendment's guarantee
against unreasonable searches and seizures, may be inconsistent or even
hostile." Bivens, supra, 403 U.S. at 394, 91 S.Ct. at 2003.

15

In the case Sub judice, the government argues in support of the judgment of the
court below that the converse of the position taken in Bivens is applicable
because "where Congress Has acted to establish a remedial scheme (FTCA),
the more general remedies usually available to the courts are foreclosed." The
government reasons that in view of the availability of a remedy under the
FTCA, the case before us does not arise in the remedial void which caused the
Supreme Court to imply a remedy in Bivens And the absence of this void,
therefore, justifies the district court's refusal to imply a constitutional remedy in
the proceedings below.

16

The persuasiveness of the government's argument is greatly diminished,

however, by a reading of the legislative history of 28 U.S.C. 2680(h), the
amendment to the FTCA involved here. Certainly, of course, the present case
does not arise in the remedial void that handicapped Webster Bivens in
pursuing a federal claim against the government, for the remedial void was
indeed closed by congressional action in 1974 with the amendment to the
FTCA. Nevertheless, it seems clear that Congress in closing that void did not
intend to shut out damage actions against government officers who violate
constitutionally secured rights. It is clear that the amendment was specifically

designed to prevent abuses of the federal no-knock statute such as those which
occurred in Collinsville, Illinois.9 The Senate Committee which reported out
the amendment viewed the abolition of sovereign immunity as creating in favor
of "innocent individuals who are subjected to raids of the type conducted in
Collinsville" a cause of action against the government itself, a cause of action
which would exist side by side with a Bivens action against the individual
officers.
17
(T)his
provision should be viewed as a counterpart to the Bivens case and its
progenty (sic), in that it waives the defense of sovereign immunity so as to make the
Government independently liable in damages for the same type of conduct that is
alleged to have occurred in Bivens (and for which that case imposes liability upon
the individual Government officials involved).
18

S.Rep.No. 93-588, 93d Cong. 2d Sess., Reprinted in (1974) U.S.Code Cong. &
Admin.News at pp. 2789, 2791.

19

Therefore, even a cursory reading of the Senate Committee Report

demonstrates a congressional intent to provide a remedy against the federal
government in addition to, but not wholly in the place of, the private cause of
action created by Bivens. See Norton v. United States, 581 F.2d 390, 395 (4th
Cir.), Cert. denied, 439 U.S. 1003, 99 S.Ct. 613, 58 L.Ed.2d 678 (1978).
Furthermore, it is important to note that whenever Congress intended to make
the FTCA remedy the exclusive remedy it has done so explicitly. For example,
Congress exempted federal employees acting in the course of their employment
from damage suits arising out of the negligent operation of motor vehicles. 28
U.S.C. 2679 (1970). See also 38 U.S.C. 4116 (medical malpractice).

20

However, we wish to make clear that although we find there to be the two
remedies and reverse the district court's finding that the FTCA remedy has
preempted the Bivens remedy, the two remedies do not stand In pari materia.
The FTCA provision, providing a vehicle for the redress of certain common law
torts, has a broader remedial scope than that accompanying a Bivens action.
This is so because Bivens requires that there have been a constitutional
violation giving rise to federal question jurisdiction under 28 U.S.C. 1331;
and we recognize, as have other courts, that some common law torts and some
statutory torts, although actionable in state forums, do not rise to the level of
constitutional violations. Atkins v. Lanning, 556 F.2d 485, 489 (10th Cir.
1977); Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977); Smith v. Spina,
477 F.2d 1140, 1143 (3d Cir. 1973); Wells v. Ward, 470 F.2d 1185, 1187 (10th
Cir. 1972); Corby v. Conboy, 457 F.2d 251, 254 (2d Cir. 1972). The converse
is equally true insofar as some conduct is actionable under the Constitution that

involves no force or violence and for which there exists no counterpart in the
common law. See, e. g., Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d
630 (1958) (expatriation). Just as malpractice does not become a constitutional
violation merely because the victim is a prisoner, Estelle v. Gamble, 429 U.S.
97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976), so, too, not every assault
and battery gives rise to a cause of action under the Eighth Amendment because
the victim happens to be a prisoner. As Judge Friendly observed in Johnson v.
Glick, 481 F.2d 1028 (2d Cir.), Cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38
L.Ed.2d 324 (1973):
21

Certainly the constitutional protection is nowhere nearly so extensive as that

afforded by the common law tort action for battery, which makes actionable
any intentional and unpermitted contact with the plaintiff's person or anything
attached to it and practically identified with it . . . still less is it as extensive as
that afforded by the common law action for assault, redressing "Any act of such
a nature as to excite an apprehension of battery" . . . .

22

481 F.2d at 1033. Accord, Arroyo v. Schaefer, 548 F.2d 47, 50 (2d Cir. 1977).

23

In conclusion, it should be noted that the preemptive analysis employed by the

district court and the attendant judgment dismissing plaintiff's complaint
precluded any consideration of the merits of plaintiff's federal and state law
claims in the proceedings below.10 We emphasize that our reversal of the
district court's judgment is predicated solely upon the court's finding that the
amendment to the FTCA has preempted plaintiff's Bivens action. Accordingly,
in view of the procedural posture of this case, we deem it inappropriate at this
time to express any opinion as to the merits of plaintiff's underlying claims.
Indeed, we believe that a remand of the cause to the court below is called for
here to afford the trier of fact the first opportunity to pass upon the merits of
plaintiff's claims.

24

Therefore, the proceedings in the district court on remand should be directed

toward an evaluation of the alleged conduct of the defendants, and a
determination whether, assuming the alleged conduct in fact occurred, such
conduct constituted a violation of Hernandez' Eighth Amendment right to be
free from cruel and unusual punishment or whether such conduct amounted
merely to an invasion of his state-created rights which commonly is redressed
by actions in tort.

25

Finally, we note that in the proceedings below the district judge had expressed
a willingness to allow plaintiff to amend his complaint to include a Fifth

Amendment claim. Although the plaintiff's complaint was not so amended,

plaintiff did assert a due process claim in a pre-trial memorandum, as well as in
answers to interrogatories. In view of recent developments in this area of the
law, See, e. g., Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846
(1979), and the district judge's prior expression of willingness to permit such an
amendment, plaintiff should be entitled to amend his complaint in the
proceedings on remand to include a Fifth Amendment claim if he so desires.
26

Judgment reversed and cause remanded to the district court for further
proceedings.

Hon. Eugene H. Nickerson of the U. S. District Court for the Eastern District of
New York, sitting by designation

The pertinent allegations of the complaint read as follows:

FIRST CLAIM FOR RELIEF

Shortly after dinner was served at floor 9 North at M.C.C. on October 4, 1976,
plaintiff returned to his cell on the same floor

Several minutes later, Defendants LATTIMORE, MITCHELL, HERBERT,

AVIGNONE and BROWN arrived at plaintiffs' (sic) cell and ordered him to
accompany them

Plaintiff accompanied these five defendants to the elevator at 9 North and they
all went into the elevator

10

While in the elevator, plaintiff was punched about the face and body by
defendant LATTIMORE while plaintiff was surrounded by defendants
MITCHELL, HERBERT, AVIGNONE and BROWN. One of the defendants
kicked the plaintiff while he was on the elevator

11

During the incident described in paragraphs 8-10, plaintiff disobeyed no orders

by any prison official, nor did he strike or attempt to strike anyone

12

Solely as a result of the brutal, malicious, and unlawful beating inflicted by

defendants, plaintiff received severe injuries to his face, mouth, and body

13

After the beating, plaintiff was taken to a holding area on the third floor of the
M.C.C

(Appendix at 5a, 6a).

2

The defendants' answer indicates that Hernandez was ordered to return to his
cell by officers of the M.C.C. following his outburst in the cafeteria.
Additionally, the amended answer of defendant Lattimore states that he, along
with other correctional officers, was ordered to remove Hernandez from the
ninth floor to the third floor of the M.C.C
The holding areas, such as the one in which Hernandez was deposited, are
commonly used for newly arrived prisoners awaiting cell assignment, for
prisoners who present disciplinary problems, and for prisoners awaiting
psychiatric testing.

The complaint charged that "(s)ometime later on the same night, defendant
EDWARDS came into the area where plaintiff was being held. He did nothing
to aid or treat plaintiff, who was bleeding profusely, for his injuries." Plaintiff's
complaint, P 14. Hernandez contended that Edwards's failure to offer him
emergency medical assistance prolonged his mental pain and physical
suffering, and constituted a deliberate indifference to serious medical needs of a
prisoner in violation of the Eighth Amendment's prohibition against cruel and
unusual punishments. See Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50
L.Ed.2d 251 (1976)
The complaint with respect to defendant Edwards was, however, dismissed on
the consent of the parties by Stipulation and Order filed on December 27, 1977.

Defendant Lattimore alleges that Hernandez assaulted and struck him first,
whereupon Lattimore used only such force as was necessary to defend himself
and restrain appellant. Amended Answer, Defendant Lattimore, P 12-13

Although we reverse the district court's judgment dismissing plaintiff's

complaint, we do not do so because of any failure of the district court to apply
correctly the guidelines articulated in Heyman v. Commerce & Industry
Insurance Co., 524 F.2d 1317, 1319-20 (2d Cir. 1975), in ruling on the
defendant's motion for summary judgment. The court below did not "try issues
of fact," nor did it fail to "resolve all ambiguities and draw all reasonable
inferences" in plaintiff's favor. The court below merely found that, assuming
plaintiff's claims to be meritorious, an FTCA action, and not a Bivens action,
was the only available vehicle for the presentation of those claims in a federal
forum

Counsel for appellant argued that the FTCA was an inadequate alternative
inasmuch as punitive damages were not recoverable, 28 U.S.C. 2402. The
district court expressed doubt as to whether punitive damages would be

recoverable in a Bivens type action, and concluded "there seems to be no reason

to assume that they are not, since assault and battery (the torts which parallel
the constitutional interest asserted by Hernandez) are typical of the intentional
torts for which punitive damages may be awarded . . . ." Memorandum and
Order, at 6. We find it unnecessary to comment upon this lower court dictum.
Even the issue of whether compensatory damages should be awarded this
plaintiff was never reached below; nor has it been here
7

28 U.S.C. 1346 gives the district court original jurisdiction and concurrent
jurisdiction with the Court of Claims over claims against the United States.
Subsection (b) of 1346, along with 28 U.S.C. 2671 et seq., were designed
primarily to remove the sovereign immunity of the United States from suits in
tort, and, with certain exceptions, to render the government liable in tort as a
private individual would be under like circumstances. The exceptions
preserving sovereign immunity are set out in 28 U.S.C. 2680. Subsection (h)
of 2680 preserves immunity with respect to claims arising out of false
imprisonment, false arrest, etc. Public Law 93-253, 2, however, amended
2680(h) by adding the following proviso:
Provided, That, with regard to acts or omissions of investigative or law
enforcement officers of the United States Government, the provisions of this
chapter and section 1346(b) of this title shall apply to any claim arising, on or
after the date of the enactment of this proviso, out of assault, battery, false
imprisonment, false arrest, abuse of process, or malicious prosecution. For the
purpose of this subsection, "investigative or law enforcement officer" means
any officer of the United States who is empowered by law to execute searches,
to seize evidence or to make arrests for violations of Federal law.
The defendants fall within the definition of "investigative or law enforcement
officers" by virtue of 18 U.S.C. 3050, which empowers officers or employees
of the Bureau of Prisons of the Department of Justice to make arrests.

As was said when the Bivens case was first before us:
It is my thought that by virtue of 28 U.S.C. 1331 the federal courts can also
entertain this cause of action irrespective of whether a statute exists specifically
authorizing a federal suit against federal officers for damages allegedly
occasioned by their unnecessarily severe acts. . . .
. . . It seems evident to me, therefore, that, logically, if we should wish to
ensure to an individual the fullest protection of his constitutional rights, an
action against federal officers for trespassory damages should be maintainable
in the federal courts.

409 F.2d 718, 726 (2d Cir. 1969) (Waterman, J., concurring).
9

The Collinsville raids involved abuses of the federal no-knock statute (21
U.S.C. 879) by federal law enforcement officers which amounted to prima
facie violations of the Fourth Amendment. The most notorious of the raids
occurred in April 1973. In two separate incidents the same federal agents
conducted no-knock raids on two different homes. "The agents entered the two
houses without warrants in violation of the Federal 'no-knock' statute, kicked in
the doors without warning, shouting obscenities, and threatening the occupants
with drawn weapons. The terrified inhabitants were only temporarily relieved
when the agents left after discovering that they had entered the wrong houses."
At the time the raids were conducted the innocent victims were without a legal
remedy against the federal government for physical damage, much less for the
pain, suffering, and humiliation to which the families were subjected, due to the
bar of sovereign immunity. Inasmuch as no evidence was seized and the
individuals were never arrested, nor ever suspected of wrongdoing, the
traditional remedy for Fourth Amendment violations the exclusionary rule was
a totally inadequate remedy
The committee, while recognizing the private right of action against the
individual officers created by Bivens, supra, determined that the private cause
of action was a "hollow remedy" because "Federal agents are usually judgment
proof." The codification of the doctrine of sovereign immunity as evidenced by
the Federal Tort Claims Act (28 U.S.C. 2671-2680) was viewed by the
committee as manifestly unjust. The amendment deprives the federal
government of the defense of sovereign immunity in any case where federal law
enforcement agents, acting within the scope of their employment, or under
color of federal law, commit any of the following torts: assault, battery, false
imprisonment, false arrest, malicious prosecution, or abuse of process. See
S.Rep.No. 93-588, 93d Cong., 2d Sess., Reprinted in (1974) U.S.Code Cong. &
Admin.News at pp. 2790-91.

10

See note 5, Supra