United States District Court, S.D. Indiana, Terre Haute Division
ENTRY DENYING MOTION FOR PARTIAL STAY OF PROCEEDINGS
AND DIRECTING FURTHER PROCEEDINGS
Patrick Hanlon United States District Judge
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 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.
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
non-parties 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.
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
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
judgment bar would apply whether an FTCA judgment favored the
plaintiff or the United 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.
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.
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 plaintiffs conditional offer to dismiss (or
defer) his Bivens claims has been rejected.
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.
, is denied.
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