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FTCA, Bivens Claims in Beating Suit Proceed in Bifurcated Trial
Orlando Ortiz, a pretrial detainee, brought action for use of excessive force during a pat search under the Federal Tort Claims Act, 28 U.S.C. §26722680 (FTCA), and Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 833 (1971). Ortiz charged that Lt. Carl A. Pearson and C.O. Carl Alplanalp, of Otisville Federal Correctional Institution, violated his due process rights secured by the 5th Amendment.
During a pat search Ortiz was found to have his cellmate's Walkman radio. A disagreement ensued between Alplanalp and Ortiz ending in Ortiz being escorted to Pearson's office. The facts as to what happened next are in dispute. Ortiz claims he was thrown to the ground, forcefully handcuffed and then raised by his handcuffs and dropped on the concrete, causing injury to his shoulder, face, body and leg. The defendants deny that this occurred, or, in the alternative, that any force used was de minimis and did not arise to the required constitutional threshold.
The defendants moved for summary judgment on qualified immunity and sovereign immunity; severance and stay of the Bivens claim pending resolution of the FTCA claim, and election of remedies.
The court held that the disputed facts required a trial, especially referring to a MRI acquired during discovery which showed that Ortiz had a torn rotator cuff and conflicting statements from the parties and witnesses. The court found that the conflicting statements included evidence from which both the subjective and objective components of an excessive force claim could be reasonably inferred. See: Hudson v. McMillian, 503 U.S. 1, 8 (1992).
The court denied defendants' motions finding that the right of a pretrial detainee not to be subjected to excessive force was "clearly established law," and that F.R.Civ.P. 56 requires inferences to be made in favor of nonmoving party. See, Graham v. Conner, 490 U.S. 386 n. 10 (1989). The Court rejected the reasoning in Pooler v. United States, 787 F.2d 868 (3rd Cir. 1986) applying sovereign immunity to claims like those raised by Ortiz finding the majority of Federal circuits disagree with Pooler. The court found an exception created in 28 U.S.C. §2680(h) to the general rule that intentional torts arising from a claim of assault and battery are not cognizable under the FTCA.
The motions for severance and election of remedies presented a more complicated legal question. If severance was granted the real danger existed that either the FTCA claim, or the Bivens claim, would be compromised. The Court noted that just because Ortiz may bring both claims (Carlson v. Greene, 446 U.S. 14, 1920 (1980)), does not mean he can recover on both claims because the FTCA bars such double recovery. 28 U.S.C. §2676.
If a bench trial was held on the FTCA claims, the resolution of contested facts by the court would act to preclude a jury trial on the Bivens claims. Fed.R.Civ.P. 42(b). The court found that severance would infringe upon the right to a jury trial under the 7th Amendment on the Bivens claim and refused to grant severance. The court instead allowed both claims to proceed to a bifurcated trial with Ortiz being given the benefit of hearing the jury's verdict on the Bivens claim prior to electing on which he chose to recover. The court pointed out that unlike previous cases, a bifurcated trial was proper because this case was uncomplicated as to the evidence, witnesses and claims. See. Ortiz v. Pearson, 88 F.Supp.2d 151 (S.D.N.Y. 1999).
During a pat search Ortiz was found to have his cellmate's Walkman radio. A disagreement ensued between Alplanalp and Ortiz ending in Ortiz being escorted to Pearson's office. The facts as to what happened next are in dispute. Ortiz claims he was thrown to the ground, forcefully handcuffed and then raised by his handcuffs and dropped on the concrete, causing injury to his shoulder, face, body and leg. The defendants deny that this occurred, or, in the alternative, that any force used was de minimis and did not arise to the required constitutional threshold.
The defendants moved for summary judgment on qualified immunity and sovereign immunity; severance and stay of the Bivens claim pending resolution of the FTCA claim, and election of remedies.
The court held that the disputed facts required a trial, especially referring to a MRI acquired during discovery which showed that Ortiz had a torn rotator cuff and conflicting statements from the parties and witnesses. The court found that the conflicting statements included evidence from which both the subjective and objective components of an excessive force claim could be reasonably inferred. See: Hudson v. McMillian, 503 U.S. 1, 8 (1992).
The court denied defendants' motions finding that the right of a pretrial detainee not to be subjected to excessive force was "clearly established law," and that F.R.Civ.P. 56 requires inferences to be made in favor of nonmoving party. See, Graham v. Conner, 490 U.S. 386 n. 10 (1989). The Court rejected the reasoning in Pooler v. United States, 787 F.2d 868 (3rd Cir. 1986) applying sovereign immunity to claims like those raised by Ortiz finding the majority of Federal circuits disagree with Pooler. The court found an exception created in 28 U.S.C. §2680(h) to the general rule that intentional torts arising from a claim of assault and battery are not cognizable under the FTCA.
The motions for severance and election of remedies presented a more complicated legal question. If severance was granted the real danger existed that either the FTCA claim, or the Bivens claim, would be compromised. The Court noted that just because Ortiz may bring both claims (Carlson v. Greene, 446 U.S. 14, 1920 (1980)), does not mean he can recover on both claims because the FTCA bars such double recovery. 28 U.S.C. §2676.
If a bench trial was held on the FTCA claims, the resolution of contested facts by the court would act to preclude a jury trial on the Bivens claims. Fed.R.Civ.P. 42(b). The court found that severance would infringe upon the right to a jury trial under the 7th Amendment on the Bivens claim and refused to grant severance. The court instead allowed both claims to proceed to a bifurcated trial with Ortiz being given the benefit of hearing the jury's verdict on the Bivens claim prior to electing on which he chose to recover. The court pointed out that unlike previous cases, a bifurcated trial was proper because this case was uncomplicated as to the evidence, witnesses and claims. See. Ortiz v. Pearson, 88 F.Supp.2d 151 (S.D.N.Y. 1999).
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Related legal case
Ortiz v. Pearson
| Year | 1999 |
|---|---|
| Cite | 88 F.Supp.2d 151 (S.D.N.Y. 1999) |
| Level | District Court |
ORLANDO ORTIZ, Plaintiff, -against- LIEUTENANT C.A. PEARSON, CORRECTIONS OFFICER C. ABPLANALP, and the UNITED STATES OF AMERICA, Defendants.
97 Civ. 885(KMW)(THK)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
88 F. Supp. 2d 151; 2000 U.S. Dist. LEXIS 19503
February 22, 2000, Decided
February 24, 2000, Filed
DISPOSITION: [**1] Defendant's motion for summary judgment denied.
COUNSEL: ORLANDO R. ORTIZ, plaintiff, Pro se, New York, NY.
For ORLANDO R. ORTIZ, plaintiff: Dianne L. Rosky, Dianne L. Rosky, Esq., New York, NY.
For ORLANDO R. ORTIZ, plaintiff: John J. Sullivan, John J. Sullivan, New York, NY.
For ORLANDO R. ORTIZ, plaintiff: Henry Augustus Lanman.
For LIETENTANT MR. PEARSON, C. ABPLANALP, UNITED STATES OF AMERICA, defendants: Aaron M. Katz, United States Attorney's Office, New York, NY.
For LIETENTANT MR. PEARSON, C. ABPLANALP, defendants: Aaron M. Katz, Mary Jo White, U.S. Attorney for the SDNY, New York, NY.
JUDGES: Kimba M. Wood, United States District Judge.
OPINIONBY: Kimba M. Wood
OPINION: [*153] ORDER
WOOD, U.S.D.J.:
Pro se plaintiff alleges that federal prison officials used excessive force against him during pre-trial detention, entitling him to monetary relief from the United States pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. ç 2671 et seq., and from individual defendants pursuant to the implied constitutional right of action recognized in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971) [**2] and its progeny. Defendants move for summary judgment dismissing both claims or, in the alternative, to sever and stay the Bivens action pending trial on the FTCA claim. In a Report and Recommendation (the "Report") dated November 5, 1999, Magistrate Judge Katz recommended that defendants' motion be denied in its entirety because (1) a genuine factual dispute exists as to whether prison officials engaged in conduct constituting excessive force, (2) a genuine factual dispute exists as to whether individual defendants are entitled to qualified immunity, (3) the FTCA waives sovereign immunity as to the alleged conduct, and (4) separate trials of the Bivens and FTCA claims are inappropriate under the circumstances. For the reasons stated below, the Court rejects defendants' objections to Magistrate Judge Katz's thorough and persuasive Report, familiarity with which is assumed, and adopts the Report in its entirety.
I. Discussion
The Court reviews de novo the Report on this potentially dispositive motion. See 28 U.S.C. ç 636(b)(1).
A. The Factual Basis of Plaintiff's Bivens Claim
The Court adopts the Report's careful analysis of the [**3] competing accounts of the underlying facts and its conclusion that the reasonable inferences most favorable to plaintiff would support a jury finding that (1) the force used went beyond the de minimis level not subject to constitutional [*154] scrutiny, and (2) the force was applied with a "sufficiently culpable state of mind . . . characterized by 'wantonness'" to violate the Constitution. United States v. Walsh, 194 F.3d 37, 50 (2d Cir. 1999) (setting out standards for excessive force claims by pre-trial detainees) (internal quotation marks and citations omitted). Defendants' objections on these points merely reiterate their view of the facts rather than the reasonable view most favorable to plaintiff.
Individual defendants' objections that they are entitled to qualified immunity as a matter of law are similarly flawed. In this case, the critical issues for qualified immunity purposes are the same underlying factual disputes as those for the excessive force claim itself: (1) did plaintiff resist defendant Abplanalp's attempt to handcuff him, or did Abplanalp physically prevent plaintiff from complying with his orders? (2) did defendants lift plaintiff's body to a forty-five [**4] degree angle from the ground by pulling on his wrists handcuffed behind his back and then drop him face-first into the concrete, or did they lift him by his armpits without dropping him? When the availability of qualified immunity turns on the disputed underlying material facts, not on the reasonableness of actions taken in undisputed factual circumstances, "jury consideration is normally required." Oliveira v. Mayer, 23 F.3d 642, 649 (2d Cir. 1994); cf. Lennon v. Miller, 66 F.3d 416, 421 (2d Cir. 1995) (noting that the judge is required "to resolve questions of reasonableness on summary judgment in qualified immunity cases where the material facts are not in dispute"). Were the jury to accept plaintiff's version of the facts, this would be a case in which "no officer of reasonable competence could have made the same choice in similar circumstances," Lennon, 66 F.3d at 420-21, and not one in which individual defendants could have reasonably, but mistakenly, thought their actions lawful. See Oliveira, 23 F.3d at 648-49 (distinguishing between the reasonableness of actions for constitutional liability purposes and the [**5] reasonableness of belief in the actions' lawfulness for qualified immunity purposes).
B. The Scope of the FTCA's Waiver of Sovereign Immunity
The Court adopts the Report's thoroughly reasoned conclusion that the FTCA's waiver of sovereign immunity for law enforcement officers' intentional torts is not limited to torts committed in the course of a search, seizure, or arrest. First, the plain language of the provision at issue distinguishes between the acts for which immunity is waived -- "assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution" -- and the class of persons for whose acts immunity is waived -- officers "empowered by law to execute searches, to seize evidence, or to make arrests." 28 U.S.C. ç 2680(h); accord Crow v. United States, 659 F. Supp. 556, 570 (D. Kan. 1987); Harris v. United States, 677 F. Supp. 403, 405 (W.D.N.C. 1988). Second, the legislative history makes clear that Congress did not intend to limit the waiver to torts arising from activities subject to Fourth Amendment scrutiny, notwithstanding the fact that the legislation was motivated by particular [**6] instances of such activity. See S. Rep. No. 93-588 at 3 (1974), reprinted in 1974 U.S.C.C.A.N. 2789, 2791 (noting that the provision "would submit the Government to liability whenever its agents . . . injure the public through [illegal] search and seizures" but that the "amendment should not be viewed as limited to constitutional tort situations"); Harris, 677 F. Supp. at 404-05; cf. Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 118 S. Ct. 998, 1002, 140 L. Ed. 2d 201 (1998) ("Statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.").
The authorities cited by defendants do not compel another result. Defendants rely on the Third Circuit's decision in Pooler v. United States, 787 F.2d 868 (3d Cir. 1986), which held that ç 2680(h) addresses only "conduct in the course of a search, a seizure, or an arrest." Id. at 872. [*155] For the reasons stated above and discussed fully in the Report, the Court concludes that Pooler was wrongly decided and [**7] instead follows the broader interpretation given ç 2680(h) by all other federal courts to consider the issue, including the D.C. Circuit. See Sami v. United States, 199 U.S. App. D.C. 173, 617 F.2d 755, 764-65 (D.C. Cir. 1979); Employers Ins. of Wassau v. United States, 815 F. Supp. 255 (N.D. Ill. 1993); Harris, 677 F. Supp. 403; Crow, 659 F. Supp. 556.
The unpublished opinion in Wood v. United States, 1993 U.S. Dist. LEXIS 6494, No. 92 Civ. 247(JSM), 1993 WL 177821 (S.D.N.Y. May 17, 1993), is not to the contrary. In Wood, Judge Martin ruled that the United States could not be sued under the FTCA for damages arising from a Drug Enforcement Administration ("DEA") investigator's killing of his wife in their home, while off duty, with a privately owned gun, and in the absence of any DEA requirement that he carry a firearm while off duty. Among other reasons, Judge Martin found that there had been no waiver Of sovereign immunity and noted the Pooler decision; the opinion, however, does not adopt Pooler but rather notes the "even greater reason" not to apply the law enforcement officer waiver when the tort was committed [**8] "by an off-duty agent in his home in the middle of the night." Id. at *1. Wood is therefore entirely consistent with those authorities applying ç 2680(h) to torts committed in the course of law enforcement activity without limitation to those committed in the course of search, seizure, or arrest. See generally Employers Ins. of Wassau, 815 F. Supp. 255, 259-60. It is undisputed here that the torts alleged here were committed in the course of individual defendants' employment as law enforcement officers. n1
n1 Kohn v. United States, 680 F.2d 922 (2d Cir. 1982), also cited by defendants, does not address the issue at hand. Kohn merely holds that ç 2680(h) does not waive sovereign immunity for the "purely intra-military torts" to which sovereign immunity applies under Feres v. United States, 340 U.S. 135, 95 L. Ed. 152, 71 S. Ct. 153 (1950), regardless of whether they occur in the course of a search, seizure, or arrest. 680 F.2d at 926.
[**9]
C. Severance of the Bivens and FTCA Claims
The Court adopts the Report's recommendation against severing and staying the Bivens claim pending a bench trial on the FTCA claim. Defendants object to the alleged burdens of trying the claims against all defendants because 28 U.S.C. ç 2676 bars recovery against individual defendants once judgment has been entered on the FTCA claim. Defendants, however, fail to articulate the nature of these burdens: because the claims arise from the same set of facts and all defendants are being represented by the same counsel, a trial on one claim is not necessarily less burdensome than two separate trials with duplicative evidence and argument. Severance and trial on the FTCA claim would, however, seriously burden plaintiff's right to a jury trial because the Court would resolve the contested factual issues in the FTCA bench trial. See Fed. R. Civ. P. 42(b) (severance must "preserve inviolate the right of trial by jury"). In the absence of any authority suggesting that ç 2676 requires severance of Bivens and FTCA claims alleged together in a single action, the Court concludes that in this case separate trials [**10] would neither further convenience nor avoid prejudice; therefore, it declines to sever the two claims for trial. See Fed R. Civ. P. 42(b).
II. Conclusion
For the reasons stated above, the Court denies defendants' motion for summary judgment in its entirety. A Joint Pre-trial Order is due March 6, 2000.
SO ORDERED.
Dated: New York, New York
February 22, 2000
Kimba M. Wood
United States District Judge
97 Civ. 885(KMW)(THK)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
88 F. Supp. 2d 151; 2000 U.S. Dist. LEXIS 19503
February 22, 2000, Decided
February 24, 2000, Filed
DISPOSITION: [**1] Defendant's motion for summary judgment denied.
COUNSEL: ORLANDO R. ORTIZ, plaintiff, Pro se, New York, NY.
For ORLANDO R. ORTIZ, plaintiff: Dianne L. Rosky, Dianne L. Rosky, Esq., New York, NY.
For ORLANDO R. ORTIZ, plaintiff: John J. Sullivan, John J. Sullivan, New York, NY.
For ORLANDO R. ORTIZ, plaintiff: Henry Augustus Lanman.
For LIETENTANT MR. PEARSON, C. ABPLANALP, UNITED STATES OF AMERICA, defendants: Aaron M. Katz, United States Attorney's Office, New York, NY.
For LIETENTANT MR. PEARSON, C. ABPLANALP, defendants: Aaron M. Katz, Mary Jo White, U.S. Attorney for the SDNY, New York, NY.
JUDGES: Kimba M. Wood, United States District Judge.
OPINIONBY: Kimba M. Wood
OPINION: [*153] ORDER
WOOD, U.S.D.J.:
Pro se plaintiff alleges that federal prison officials used excessive force against him during pre-trial detention, entitling him to monetary relief from the United States pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. ç 2671 et seq., and from individual defendants pursuant to the implied constitutional right of action recognized in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971) [**2] and its progeny. Defendants move for summary judgment dismissing both claims or, in the alternative, to sever and stay the Bivens action pending trial on the FTCA claim. In a Report and Recommendation (the "Report") dated November 5, 1999, Magistrate Judge Katz recommended that defendants' motion be denied in its entirety because (1) a genuine factual dispute exists as to whether prison officials engaged in conduct constituting excessive force, (2) a genuine factual dispute exists as to whether individual defendants are entitled to qualified immunity, (3) the FTCA waives sovereign immunity as to the alleged conduct, and (4) separate trials of the Bivens and FTCA claims are inappropriate under the circumstances. For the reasons stated below, the Court rejects defendants' objections to Magistrate Judge Katz's thorough and persuasive Report, familiarity with which is assumed, and adopts the Report in its entirety.
I. Discussion
The Court reviews de novo the Report on this potentially dispositive motion. See 28 U.S.C. ç 636(b)(1).
A. The Factual Basis of Plaintiff's Bivens Claim
The Court adopts the Report's careful analysis of the [**3] competing accounts of the underlying facts and its conclusion that the reasonable inferences most favorable to plaintiff would support a jury finding that (1) the force used went beyond the de minimis level not subject to constitutional [*154] scrutiny, and (2) the force was applied with a "sufficiently culpable state of mind . . . characterized by 'wantonness'" to violate the Constitution. United States v. Walsh, 194 F.3d 37, 50 (2d Cir. 1999) (setting out standards for excessive force claims by pre-trial detainees) (internal quotation marks and citations omitted). Defendants' objections on these points merely reiterate their view of the facts rather than the reasonable view most favorable to plaintiff.
Individual defendants' objections that they are entitled to qualified immunity as a matter of law are similarly flawed. In this case, the critical issues for qualified immunity purposes are the same underlying factual disputes as those for the excessive force claim itself: (1) did plaintiff resist defendant Abplanalp's attempt to handcuff him, or did Abplanalp physically prevent plaintiff from complying with his orders? (2) did defendants lift plaintiff's body to a forty-five [**4] degree angle from the ground by pulling on his wrists handcuffed behind his back and then drop him face-first into the concrete, or did they lift him by his armpits without dropping him? When the availability of qualified immunity turns on the disputed underlying material facts, not on the reasonableness of actions taken in undisputed factual circumstances, "jury consideration is normally required." Oliveira v. Mayer, 23 F.3d 642, 649 (2d Cir. 1994); cf. Lennon v. Miller, 66 F.3d 416, 421 (2d Cir. 1995) (noting that the judge is required "to resolve questions of reasonableness on summary judgment in qualified immunity cases where the material facts are not in dispute"). Were the jury to accept plaintiff's version of the facts, this would be a case in which "no officer of reasonable competence could have made the same choice in similar circumstances," Lennon, 66 F.3d at 420-21, and not one in which individual defendants could have reasonably, but mistakenly, thought their actions lawful. See Oliveira, 23 F.3d at 648-49 (distinguishing between the reasonableness of actions for constitutional liability purposes and the [**5] reasonableness of belief in the actions' lawfulness for qualified immunity purposes).
B. The Scope of the FTCA's Waiver of Sovereign Immunity
The Court adopts the Report's thoroughly reasoned conclusion that the FTCA's waiver of sovereign immunity for law enforcement officers' intentional torts is not limited to torts committed in the course of a search, seizure, or arrest. First, the plain language of the provision at issue distinguishes between the acts for which immunity is waived -- "assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution" -- and the class of persons for whose acts immunity is waived -- officers "empowered by law to execute searches, to seize evidence, or to make arrests." 28 U.S.C. ç 2680(h); accord Crow v. United States, 659 F. Supp. 556, 570 (D. Kan. 1987); Harris v. United States, 677 F. Supp. 403, 405 (W.D.N.C. 1988). Second, the legislative history makes clear that Congress did not intend to limit the waiver to torts arising from activities subject to Fourth Amendment scrutiny, notwithstanding the fact that the legislation was motivated by particular [**6] instances of such activity. See S. Rep. No. 93-588 at 3 (1974), reprinted in 1974 U.S.C.C.A.N. 2789, 2791 (noting that the provision "would submit the Government to liability whenever its agents . . . injure the public through [illegal] search and seizures" but that the "amendment should not be viewed as limited to constitutional tort situations"); Harris, 677 F. Supp. at 404-05; cf. Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 118 S. Ct. 998, 1002, 140 L. Ed. 2d 201 (1998) ("Statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.").
The authorities cited by defendants do not compel another result. Defendants rely on the Third Circuit's decision in Pooler v. United States, 787 F.2d 868 (3d Cir. 1986), which held that ç 2680(h) addresses only "conduct in the course of a search, a seizure, or an arrest." Id. at 872. [*155] For the reasons stated above and discussed fully in the Report, the Court concludes that Pooler was wrongly decided and [**7] instead follows the broader interpretation given ç 2680(h) by all other federal courts to consider the issue, including the D.C. Circuit. See Sami v. United States, 199 U.S. App. D.C. 173, 617 F.2d 755, 764-65 (D.C. Cir. 1979); Employers Ins. of Wassau v. United States, 815 F. Supp. 255 (N.D. Ill. 1993); Harris, 677 F. Supp. 403; Crow, 659 F. Supp. 556.
The unpublished opinion in Wood v. United States, 1993 U.S. Dist. LEXIS 6494, No. 92 Civ. 247(JSM), 1993 WL 177821 (S.D.N.Y. May 17, 1993), is not to the contrary. In Wood, Judge Martin ruled that the United States could not be sued under the FTCA for damages arising from a Drug Enforcement Administration ("DEA") investigator's killing of his wife in their home, while off duty, with a privately owned gun, and in the absence of any DEA requirement that he carry a firearm while off duty. Among other reasons, Judge Martin found that there had been no waiver Of sovereign immunity and noted the Pooler decision; the opinion, however, does not adopt Pooler but rather notes the "even greater reason" not to apply the law enforcement officer waiver when the tort was committed [**8] "by an off-duty agent in his home in the middle of the night." Id. at *1. Wood is therefore entirely consistent with those authorities applying ç 2680(h) to torts committed in the course of law enforcement activity without limitation to those committed in the course of search, seizure, or arrest. See generally Employers Ins. of Wassau, 815 F. Supp. 255, 259-60. It is undisputed here that the torts alleged here were committed in the course of individual defendants' employment as law enforcement officers. n1
n1 Kohn v. United States, 680 F.2d 922 (2d Cir. 1982), also cited by defendants, does not address the issue at hand. Kohn merely holds that ç 2680(h) does not waive sovereign immunity for the "purely intra-military torts" to which sovereign immunity applies under Feres v. United States, 340 U.S. 135, 95 L. Ed. 152, 71 S. Ct. 153 (1950), regardless of whether they occur in the course of a search, seizure, or arrest. 680 F.2d at 926.
[**9]
C. Severance of the Bivens and FTCA Claims
The Court adopts the Report's recommendation against severing and staying the Bivens claim pending a bench trial on the FTCA claim. Defendants object to the alleged burdens of trying the claims against all defendants because 28 U.S.C. ç 2676 bars recovery against individual defendants once judgment has been entered on the FTCA claim. Defendants, however, fail to articulate the nature of these burdens: because the claims arise from the same set of facts and all defendants are being represented by the same counsel, a trial on one claim is not necessarily less burdensome than two separate trials with duplicative evidence and argument. Severance and trial on the FTCA claim would, however, seriously burden plaintiff's right to a jury trial because the Court would resolve the contested factual issues in the FTCA bench trial. See Fed. R. Civ. P. 42(b) (severance must "preserve inviolate the right of trial by jury"). In the absence of any authority suggesting that ç 2676 requires severance of Bivens and FTCA claims alleged together in a single action, the Court concludes that in this case separate trials [**10] would neither further convenience nor avoid prejudice; therefore, it declines to sever the two claims for trial. See Fed R. Civ. P. 42(b).
II. Conclusion
For the reasons stated above, the Court denies defendants' motion for summary judgment in its entirety. A Joint Pre-trial Order is due March 6, 2000.
SO ORDERED.
Dated: New York, New York
February 22, 2000
Kimba M. Wood
United States District Judge