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Ingram v Faruque

Case No. 11-6341 (C.A. 10, Sep. 6, 2013)

INTRODUCTION



Plaintiff-Appellant Delbert Ingram appeals from a district court’s dismissal of his claims against Defendants-Appellees (“Defendants”). Mr. Ingram sued Defendants- Appellees—Dr. Hashib D. Faruque, Dr. Yan Feng, Donna Delise, Kyle Inhofe, Lt. Michael Stevenson, and Captain Tim Collins — claiming that Defendants had violated his rights under the Fourth and Fifth Amendments of the U.S. Constitution by holding him in a psychiatric ward for over twenty-four hours without his consent. Defendants filed motions to dismiss, arguing that, among other things, the district court lacked subject matter jurisdiction over the action, because the Federal Tort Claims Act (“FTCA”) provided the sole remedy for Mr. Ingram’s claims, and that the court therefore should not authorize a judicial remedy under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Fed. R. Civ. P. 12(b)(1).

The district court agreed that it lacked subject matter jurisdiction over Mr. Ingram’s claims, and therefore granted Defendants’ motions to dismiss. Specifically, the court concluded that Mr. Ingram had a remedy available under 38 U.S.C. § 7316 (“VA Immunity Statute”), which applies the remedy available against the United States under the FTCA to damages arising from the provision of medical services by health care employees of the Veteran’s Administration (“VA”). Because of the availability of a remedy under the VA Immunity Statute, it concluded that Mr. Ingram did not have a cause of action under Bivens.

Having jurisdiction under 28 U.S.C. § 1291, we affirm on the basis that Mr. Ingram has, or has had, an adequate alternative remedy available through the VA Immunity Statute and the FTCA, and it is therefore not appropriate to authorize a Bivens remedy for Mr. Ingram. Accordingly, the district court did not err in ruling that it lacked subject matter jurisdiction over Mr. Ingram’s claims.
 

 

Judge(s): David Ebel
Jurisdiction: U.S. Court of Appeals, Tenth Circuit
Related Categories: Civil Remedies , Civil Rights , Constitutional Law , Health Care , Torts
 
Circuit Court Judge(s)
David Ebel
Scott Matheson
Michael Murphy

 
Plaintiff Lawyer(s) Plaintiff Law Firm(s)
Eric Cotton The Cotton Law Firm PLLC

 
Defendant Lawyer(s) Defendant Law Firm(s)
Sanford Coats U.S. Department of Justice
Laura Grimes U.S. Department of Justice
Suzanne Mitchell U.S. Department of Justice

 

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defendant lt. stevenson, and defendant captain collins, who were acting within the although congress was specifically concerned with medical battery, the remedy claim, green does not control this case. 28 context of va health care employees providing medical care or treatment. 38 u.s.c. § 5 harms arising out of such conduct.” id. at 1848. before matheson, ebel, and murphy, circuit judges. matter, you have no rights,” and that “[y]ou are either going voluntarily or by force.” id. 17 office or employment, under circumstances where the united states, if a private person, 38 u.s.c. § 7316(f). in other words, “§ 2680(h) does not bar application of the ftca to fifth amendments by detaining him against his will, and he sought a remedy. cancer, and after unsuccessful treatment, he died. id. at 1849. evolved over time. in green, the court explained that a bivens action is available unless ii. mr. ingram’s claims fall within the scope of the va immunity statute subject matter jurisdiction over mr. ingram’s claims. see fed. r. civ. p. 12(b)(1). 28 u.s.c. § 2680(h). thus, under the general provisions of the ftca, the united states provisions relating to the ftca do preclude such a remedy. the supreme court has held at 105. mr. ingram argues the supreme court’s holding in carlson v. green requires that that plaintiff’s thought content had no suicidal, violent or paranoid ideations, defendant an exclusive remedy that precludes mr. ingram from pursuing a cause of action under being medically cleared and released. the standards for determining whether a bivens remedy is appropriate have against his will in the psychiatric ward,” and that “[b]ased upon the actions, assertions, federal employees are sued for damages for harms caused in the course of their delbert ingram, holding him in a psychiatric ward for over twenty-four hours without his consent. slander, misrepresentation, deceit, or interference with contract rights . . . . ingram agreed to go to the emergency room with mr. inhofe and ms. delise. captain with mr. ingram only to provide support to medical personnel in furnishing medical care pub. l. 100-322. under § 7316(f), the exception to the sought a biopsy for a lesion, but a biopsy was never provided. id. at 1848–89. after his 23 during the examination, mr. ingram admitted saying something about “doing foolish admission to provide safe environment and further assessment.”3 ingram has, or has had, an adequate alternative remedy available through the va 7316(f); accord id. § 7316(a)(1). subject matter, mr. ingram may not pursue a cause of action under bivens. for that 38 u.s.c. § 7316(a). is not limited to “medical personnel”—in other words, it is not necessary under the michael stevenson; captain rule 12(b)(1) motions can take the form of either a “facial” or a “factual” attack health-care employees that are characterized as intentional torts under the laws of various b. the va immunity statute provides an exclusive remedy from providing a new and freestanding remedy in damages.” wilkie, 551 u.s. at 550. mr. ingram has an alternative, existing process for protecting his interests rejected prison officials’ argument that the remedy available under the ftca precluded remedies do not provide complete relief for the plaintiff.” 462 u.s. 367, 388 (1983). in sued on behalf of her deceased son’s estate, alleging that he had died from injuries statute for two reasons. first, he contends that the va immunity statute is not for many years, va medical personnel have been protected from personal for the western district of oklahoma court. mr. ingram timely appeals. the remedy against the united states provided by sections 1346(b) and id. (emphases added). thus, employees of the va may be “health care employee[s]” against the officer or employee (or his estate) whose act or omission gave 104. dr. faruque’s report following the examination recommended “[i]npatient committed an intentional tort—specifically, false arrest or false imprisonment—for which defendants filed motions to dismiss, arguing that, among other things, the district court true.” id. but if the challenging party brings a factual attack by “go[ing] beyond subject matter jurisdiction over mr. ingram’s claims. 28 u.s.c. § 2680(h). thus, under the ftca generally, “[i]f the negligence theory [of whose act or omission gave rise to such claim. [the] claim.” 38 u.s.c. § 7316(a)(1) (emphases added); accord 42 u.s.c. § 233(a). in id. (second alteration in original) (internal quotation marks omitted). but we will “view 26 course and scope of their employment with [the va].” aplt. app. at 12. he goes on to in our analysis, there are two relevant provisions of the va immunity statute at 599 f.3d at 1175. each of these defendants testified that he or she was acting within the second, “even in the absence of an alternative, a bivens remedy is a subject of remedy under the ftca, a cause of action against the responsible health worker could be negligence of a health care employee of the [va],” 38 u.s.c. § 7316(a)(1), as well as assessment, or that she would initiate the paperwork to obtain an emergency order of 1. section § 7316(a)(1) statute, and “[t]his court . . . will not craft a party’s arguments for him,” perry v. governed by comprehensive procedural and substantive provisions giving meaningful within the meaning of the va immunity statute. section 7316(a)(2) provides: mr. ingram is an employee at the oklahoma city department of veterans affairs appellant. malpractice claim.”6 ______________________________________ government under the ftca.” franklin, 992 f.2d at 1501. amendment. 446 u.s. at 16. in authorizing a cause of action under bivens, the court 12 i. the va immunity statute provides an alternative, existing process that found that the actions of both dr. faruque and dr. feng as to mr. ingram’s first argument, it is plain that his claims fall within the scope quotation marks omitted). thus, “[i]f the district court’s account of the evidence is also recommended intake for further assessment, id. at 104, and his affidavit before the care to plaintiff in the form of psychiatric care, neither defendants stevenson nor collins result of government officials’ deliberate indifference to his medical needs, in violation standard of review 2. section § 7316(f) detained and held as a result of defendants’ “willful, wanton, intentional, and . . . however, the government does not extend this immunity to actions arising defendants.” malesko, 534 u.s. at 68. indeed, even though the “court has had to decide before his death, the detainee brought a cause of action under bivens, suing phs exclusive remedy that precludes a cause of action under bivens for claims that fall within capacities. he asserted that they had collectively violated his rights under the fourth and medical care to mr. ingram, we agree that they are “other supporting personal” under the hospital.” id. at 106. she told mr. ingram that he could voluntarily sign himself in for introduction to dismiss on the grounds that “§ 233(a) g[a]ve[] them absolute immunity from bivens any . . . [health care employee] in furnishing medical care or treatment,” 38 u.s.c. at bivens, because he contends that defendants held him against his will in violation of his employment, the [ftca] generally authorizes substitution of the united states as the immunity statute and the ftca,2 mr. ingram subsequently filed an action against defendants in their individual scope of the va immunity statute. publish faruque informed plaintiff ‘in order to save my job and clear your name, i am going to (“ftca”) provided the sole remedy for mr. ingram’s claims, and that the court therefore involve the question whether the remedy available under the ftca precludes a bivens 11 to consider mr. ingram’s claims. 20 inhofe, stevenson, and collins were not clearly erroneous. rio grande silvery minnow, mr. ingram contends that dr. bukhari did not “t[ake] any action that could give rise to a for the administration. resulted in plaintiff delbert ingram being falsely, maliciously, and unlawfully detained aplt. app. at 167. we agree. because both doctors are physicians and their interactions (including medical care or treatment furnished in the course of a clinical accordingly, the record before the district court supports that these defendants interacted “supporting personnel,” is that they were acting under the direction of dr. bukhari, and § 7316(a)(1) and providing a remedy under the ftca for intentional torts arising in the [intentional] tort claims arising out of the conduct of va medical personnel within the see 38 u.s.c. §§ 2680(h) & 7316(f). and because he argues that he was unlawfully he “alleges that his confinement was not the result of medical evidence, evaluation or after arriving in the psychiatric ward, defendant dr. feng (another vamc staff nullifying § 2680(h) and thereby expanding the injured party’s remedy against the violation by federal officers may bring suit for money damages against the officers in were actions relevant to the provision of medical care[,] . . . . that each in the context of the va immunity statute, § 7316(f) states: we affirm the district court’s decision concluding that it lacked subject matter malpractice] applies, redress against the government under the ftca is available, while with mr. ingram were in the scope of their duties and in the course of furnishing medical 42 u.s.c. § 233(a). said that he had been thinking about killing his supervisor. defendant captain collins this point, we quoted in franklin the following legislative history for § 7316(f): 22 16 omitted). before the enactment of § 7316(f), this was true under the va immunity 19 foreclose a cause of action under bivens. and, the supreme court recognized in hui that expanded-function dental auxiliary, pharmacist, or paramedical (such as conclude that it does; specifically, we hold that the text of the va immunity statute bivens. accordingly, it ruled that it lacked subject matter jurisdiction over mr. ingram’s ftca may not foreclose a bivens action, green, 446 u.s. at 19–20, other statutory documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts.” id. and statements of defendants, plaintiff was coerced into signing the consent for precludes a bivens remedy united states. the breadth of the words “exclusive” and “any” supports things to [his supervisor],” but denied having the intent to hurt or kill her. aplt. app. at plausible in light of the record viewed in its entirety, the court of appeals may not statutory exception applies, a person cannot bring a claim for battery under the ftca. in several different instances whether to imply a bivens action[,] . . . in each instance it 233(a). both 38 u.s.c. § 7316(a) and 42 u.s.c. § 233(a) state that, under these character of the action brought against va medical personnel, could defeat at 1849-50. the district court denied the motion, and the ninth circuit affirmed. id. at both doctors are “physicians”—specifically, vamc staff psychiatrists. the district court defendant furuque [sic], defendant feng, . . . defendant delise [sic], defendant inhofe, employees of the va. see 38 u.s.c. § 7316(a)(1), (f). section 7316(a)(1) states: or other supporting personnel. in sum, § 7316(f) provides alternative, existing process for protecting the interests no. 11-6341 in franklin, we analyzed 38 u.s.c. § 4116, which is the precursor to the statute at issue defendants filed motions to dismiss, arguing that, among other things, the court lacked mr. ingram argues that he should be allowed to pursue a cause of action under city department of veterans affairs medical center, in his official capacity, and the scope of his or her duties and pursuant to instructions from medical personnel. action would lie with the united states. however, if the suit was based on mr. ingram’s sole argument as to why defendants could not have been other claims for “assault, battery, false imprisonment, false arrest, malicious prosecution, abuse 1 § 7316(f). mr. ingram’s claims arise from the medical care he received at the vamc. some statutory provisions may make the ftca an exclusive remedy, such that it is not lt. michael stevenson, and captain tim collins1 first consider whether the va immunity statute provides an alternative, existing process assault his supervisor and in my evaluation is having homicidal ideation,” and that on that inflicted by federal prison officials in violation of his rights under the eighth liability in medical malpractice actions arising out of allegedly negligent door to the isolation room. aplt. br. 4. 5 1850. among other things, the ninth circuit applied the holding in green that “a bivens claim for an intentional tort, within the context of providing medical care or treatment, issue—§ 7316(a)(1) and § 7316(f). we will consider each in turn. v. respondent’s bivens claim. id. at 19-20. although both green and mr. ingram’s case bivens cause of action is available “cannot be answered simply by noting that existing this had created a difficulty, because, depending on state law, malpractice actions omitted). but since green, the supreme court has relaxed these requirements, and has ‘exclusive of any other civil action or proceeding’ for any personal injury caused by a violated his rights under the fourth and fifth amendments of the u.s. constitution by care, see 38 u.s.c. § 7316(a), (f), they are entitled to immunity under the va immunity immunity prohibits suits against the united states except in those instances in which it allegedly arising from malpractice or negligence of a health care employee was formerly contained in § 4116(a) is substantially similar to the language currently omitted). and “[t]he prerequisite for liability under the ftca is a ‘negligent or wrongful the court has “refused to extend bivens liability to any new context or new category of shall not apply to . . . [a]ny claim arising out of assault, battery, false declined to fashion a bivens remedy, even where statutory remedies may not be equally court concluded that § “233(a) makes the ftca remedy against the united states under the statute if they are employed as one of the listed types of medical personnel, or a primary argument of the defendants was that mr. ingram should not be veteran affairs, bivens remedy. we conclude that the statute provides an exclusive remedy that functions, including the conduct of clinical studies or investigation, by any including false arrest and false imprisonment. mr. ingram argues that defendants are not “other supporting personnel,” but we va health care employees for “damages . . . allegedly arising from malpractice or unlawfully detained and held in the psychiatric ward as a result of the actions of signed a voluntary consent form. but subsequently, although he repeatedly requested to support of the medical personnel who were evaluating plaintiff’s condition.” aplt. app. of his rights under the eighth amendment, see carlson v. green, 446 u.s. 14 (1980). ms. delise decided to talk to mr. ingram about the reported threat and ask him to go to intentional torts arising in the context of va health care employees providing medical stevenson, and collins are not “other supporting personnel” under the va immunity reason, the district court did not err in concluding that it lacked subject-matter jurisdiction medicine or be regularly employed as medical personnel. see 38 u.s.c. § 7316(a)(2). va immunity statute is an exclusive remedy. jurisdiction . . . .” rio grande silvery minnow (hybognathus amarus) v. bureau of expressly make the remedy under the ftca a substitute for relief under bivens.” id. treat this as a factual attack and likewise consider the materials presented by the parties to elisabeth a. shumaker a. the va immunity statute [district] court’s findings of jurisdictional facts for clear error,” and “[a] finding is clearly september 6, 2013 clerk of court at the time subsection (f) was added, the va immunity statute was codified at 38 resulting from the performance of medical, surgical, dental, or related violation of the equal protection component of the due process clause of the fifth the term “health care employee of the administration” means a physician, appropriate for courts to authorize a cause of action under bivens. 130 s. ct. at 1848. to determine whether he and other people would be safe if he were discharged from the 622 (2012). only two occasions: first, the court authorized a cause of action under bivens to redress a need not consider whether there are other “special factors counselling hesitation before here, the district court found that “[b]ut for the perceived need to provide medical 15 the evidence in the light most favorable to the district court’s ruling.” id. (internal issue. immunity was excluded by § 2680(h) and, therefore, the injured party had no possible remedy for mr. ingram. accordingly, the district court did not err in ruling that it lacked release from prison, later biopsy results confirmed that the detainee was suffering from court’s findings regarding the interactions between mr. ingram and defendants delise, for procedural or timeliness reasons, or otherwise. likewise, we do not address that necessary.” aplt. app. at 78. when mr. ingram attempted to leave the emergency room, medical center (“vamc”). at the time of the incidents resulting in this appeal, vamc would be liable to the claimant in accordance with the law of the place where the act or care or treatment. see 38 u.s.c. § 7316(f). this provision was added to the va “we review de novo . . . the district court’s determination of subject-matter statute. but “[e]ventually, congress recognized this situation—and, specifically, the supporting personnel to medical providers in their interactions with mr. ingram. section authorizing” a bivens remedy. see id. person without that person’s consent, the government is not allowed to as context for analyzing the va immunity statute, “[t]he doctrine of sovereign party to this action) filled out an affidavit stating that mr. ingram “has threatened to of the administration in furnishing health care or treatment while in the in the emergency room, mr. inhofe and ms. delise accompanied mr. ingram to a mr. ingram claims that dr. faruque informed mr. ingram that even though he “found acting within the scope of his office or employment, shall be exclusive of as background, mr. ingram alleges in his complaint that he was “wrongfully and phs officer or employee performing a medical or related function ‘while acting within (10th cir. 2000) (internal quotation marks omitted). “the ftca constitutes a limited 27 2680(h) does not apply to “any claim arising out of a negligent or wrongful act or study or investigation) while in the exercise of such person’s duties in or action for which the law intends the government to assume liability. as an in this case (38 u.s.c. § 7316). 992 f.2d at 1500 n.8, 1502 (explaining that “§ 4116 was party to this action), who recommended that mr. ingram receive a psychiatric assessment. party affidavit [signed by dr. singhal], [she] was obligated to conduct an investigation attorney, and laura m. grimes, assistant united states attorney, with her on the brief), statute. waiver of the federal government’s sovereign immunity from private suit.” estate of protecting the interest amounts to a convincing reason for the judicial branch to refrain personnel for a violation of his constitutional rights. id. at 1849. phs personnel moved court determined that the va immunity statute provided mr. ingram with a remedy for investigation to determine whether there was a sufficient basis for holding plaintiff mr. ingram argues that his claims do not fall within the scope of the va immunity under the constitution and viewed as equally effective.” 446 u.s. at 18–19 (emphasis was not considering the va immunity statute when it determined that the ftca did not authorized a bivens remedy for the estate of a prisoner who had allegedly died as the 9 collins directed defendant lt. stevenson (a vamc police officer) to escort mr. inhofe, amendment, see davis v. passman, 442 u.s. 228 (1979), and second, the court appeal from the united states district court mr. ingram’s claims fall within the scope of the va immunity statute, such that he is defendant.” hui v. castaneda, 559 u.s. 799, 130 s. ct. 1845, 1848 (2010) (citation cannot be sued for claims arising out of these enumerated intentional torts. see id. but treatment . . . while in the exercise of such person’s duties in or for the administration.” background § 233(a) . . . phs officers and employees are not personally subject to bivens actions for a remedy under the ftca is provided by § 7316(f). thus, his claims fall within the plaintiff did not assert a claim under the ftca and therefore the district court did not plaintiff-appellant, matter jurisdiction is based . . . [the] court has wide discretion to allow affidavits, other have to commit you to the psychiatric ward.’” aplt. app. at 10. mr. ingram further (1) “defendants demonstrate special factors counselling hesitation in the absence of remedy under the va immunity statute, it concluded that mr. ingram did not have a § 233(a) precluded a bivens action against petitioners. id. at 1855. specifically, the assistant, expanded-function dental auxiliary, pharmacist, or paramedical claims, and dismissed the claims against all defendants without prejudice. within thirty appeals also determined that the ftca remedy is not equally effective as a bivens psychiatrist) interviewed mr. ingram for the inpatient admission evaluation. mr. ingram remedy is unavailable only when an alternative remedy is both expressly declared to be a repealed and reenacted as § 7316,” and that “[t]he version set out under the new remedy.” id. (citation omitted). 2 3 implicated in this appeal, see wilkie, 551 u.s. at 550, by expanding the scope of plaintiff-appellant delbert ingram appeals from a district court’s dismissal of his marks omitted). in bivens, the court “held that a victim of a fourth amendment tenth circuit precludes the creation of a remedy under bivens. ii. procedural background out of intentional conduct—so-called “intentional torts.” in some such claims arise in the context of va health care employees providing medical care or green’s claim against federal prison officials for alleged violations of his eighth court has generally prescribed two steps to apply when determining whether to recognize 2 we now consider whether the va immunity statute provides an alternative, employees acting within the scope of their employment so as to cover actions of va waiver of sovereign immunity under the ftca.” franklin, 992 f.2d at 1496 (citations action for damages against federal officers alleged to have violated a citizen’s defendants as a result of their specialized education and training in the field threats and his obvious agitation, mr. ingram required a more thorough psychiatric evaluation than i could perform in the limited time available to me in the emergency act or omission of any employee of the [government] while acting within the scope of his judgment;” and therefore “the federal courts must make the kind of remedial consistent with bush and schweiker, in its recent jurisprudence, the supreme aplt. app. at 104. mr. 6 misrepresentation, deceit, or interference with contract rights,” 28 u.s.c. 2680(h), when after this conversation, mr. ingram agreed to admit himself to the hospital, and any other civil action or proceeding by reason of the same subject-matter acts or omissions of its employees, when such employees are acting within the scope of 414, even though the court acknowledged that “congress ha[d] failed to provide for at 10-11. while dr. faruque’s report following the examination did state that mr. the scope of his office or employment,’” and it held that “[b]ased on the plain language of 2672 of title 28 . . . shall be exclusive of any other civil action or proceeding by reason of 7316(f). section 7316(f) therefore “insulate[s] the individual government employee by he be allowed to proceed with a cause of action under bivens. in green, a respondent party to this action, and it is irrelevant whether mr. ingram’s allegations would give rise 3 maintained.” id. at 1500. supplement that regulatory scheme with a new nonstatutory damages remedy.” id. at bivens. because mr. ingram’s claims fall within the scope of the va immunity statute, 21 implicated, because his claims do not arise from malpractice or negligence. specifically, physician mistakenly operates on the right elbow, responsibility for this ‘complete relief,’” id. at 425, and “[t]he creation of a bivens remedy would obviously days, mr. ingram filed a motion for reconsideration, which was denied by the district u.s. 388 (1971). fed. r. civ. p. 12(b)(1). jurisdiction and dismissing mr. ingram’s claims without prejudice. police received a report from one of mr. ingram’s coworkers, stating that mr. ingram had defendants-appellees. statutory relief for a constitutional violation . . . does not by any means necessarily imply proceedings arising out of “the same subject-matter.” but since the supreme court’s last decision to authorize a bivens remedy in 1980, express any opinion whether mr. ingram’s potential ftca claim might now be barred example of medical battery—as a problem to be corrected.” id. at 1500. to illustrate u.s. public health service (“phs”) personnel. 130 s. ct. at 1848. in relevant part, for certain intentional torts committed by va health care employees in the context of ‘special factors counselling hesitation in the absence of affirmative action by congress’ will then consider whether the statute precludes a cause of action under bivens. to mr. ingram. has specifically consented to be sued.” fent v. okla. water res. bd., 235 f.3d 553, 556 action was undertaken based on decisions and information pertinent to leave, mr. ingram was held in the psychiatric ward for over twenty-four hours before dentist, podiatrist, chiropractor, optometrist, nurse, physician assistant, allegations contained in the complaint and challeng[ing] the facts upon which subject precluded from bringing a cause of action under bivens. we conclude that they do. specifically, we explained that, prior to the amendment of the va immunity statute to for the foregoing reasons, we conclude that there is an adequate alternative 6 omission of any . . . [health care employee of the va] in furnishing medical care or the exception provided in section 2680(h) of title 28 shall not apply to any mr. inhofe and ms. delise waited with mr. ingram until defendant dr. faruque (a exclusive of any other civil action or proceeding by reason of the same mounts a facial attack, “the district court must accept the allegations in the complaint as s. ct. at 623. first, “[t]here is the question whether any alternative, existing process for superior had violated his rights under the first amendment, id. at 368. the court held ms. delise, and mr. ingram to the emergency room. appellees—dr. hashib d. faruque, dr. yan feng, donna delise, kyle inhofe, 1988 u.s.c.c.a.n. 432, 450). that because the claim at issue “ar[o]se out of an employment relationship that [was] 10 erroneous when although there is evidence to support it, the reviewing court on the entire 8 any special factors counseling hesitation before authorizing a new kind of federal specifically, 28 u.s.c. § 2680(h) states that the provisions of the ftca mr. ingram therefore may not pursue a cause of action under bivens. accordingly, we if the battery theory controls, the action is specifically excluded from the government’s 13 actions by making a suit against the united states under the ftca the exclusive remedy that amounts to a convincing reason to refrain from creating a new bivens remedy. we evidence is left with the definite and firm conviction that a mistake has been committed.” place solely in the context of providing support to medical personnel in furnishing trentadue ex rel. aguilar v. united states, 397 f.3d 840, 852 (10th cir. 2005). “when omission occurred.’” id. at 1853 n.8 (quoting 28 u.s.c. § 1346(b)). in other words, the the scope of the statute. accordingly, we now consider whether mr. ingram’s claims fall because we hold that the ftca provides an alternative, existing process for addressing 28 u.s.c. § 2680(h), that “aris[e] out of a negligent or wrongful act or omission of 2672 of title 28 . . . for damage for personal injury, including death, 38 u.s.c. § 7316(a)(1). united states court of appeals 25 intentional tort, leaving va medical personnel potentially liable for an if they are providing support to such medical personnel. see id. and for other padded isolation room. subsequently, another physician, dr. karunesh singhal (not a id. at 1500 (quoting h.r.rep. no. 100–191, 100th cong., 2d sess. 19 (1988), reprinted in remedies against the united states, it would be inappropriate for [the] court to claims against defendants-appellees (“defendants”). mr. ingram sued defendants- available under § 7316(f) is not limited to battery. instead, by rendering 28 u.s.c. § in determining whether there is a bivens remedy available to mr. ingram, we will eric d. cotton, the cotton law firm, pllc, edmond, oklahoma, for plaintiff- i. factual background in this case, the language of 38 u.s.c. § 7316(a)(1) mirrors the language of § 2672 of title 28 . . . for damages for personal injury, including death, 29 discussion of medicine/psychology[,] . . . . [and] that their contact with plaintiff arose (such as medical and dental technicians, nursing assistants, and therapists), creates an exclusive remedy that precludes a bivens claim. we then consider whether on his firearm,” and that after making this statement, lt. stevenson shut and locked the the intent of the federal law to provide such employees with immunity. argue that: “defendants conducted an objectively unreasonable and insufficient in sum, mr. ingram’s claims fall within the scope of the va immunity statute, oklahoma city, oklahoma, for defendants-appellees. § 233(a) provides: delise’s [sic] and inhofe’s interaction with plaintiff arose solely at the behest of or in leave [the] er except for transfer to [the psychiatric ward],” and “suggested that [mr. dr. bukhari informed defendant inhofe (vamc’s chief of human resources) and detention. immunity statute in 1988.5 [done with] willful, wanton, intentional, and . . . reckless disregard.” id. at 15. u.s. 388). following bivens, the supreme court has authorized actions under bivens on imprisonment, false arrest, malicious prosecution, abuse of process, libel, lt. stevenson informed him that, although he was not under arrest, he was not free to woodward, 199 f.3d 1126, 1141 n.13 (10th cir. 1999). the problem in a variety of ways, and it need not have waived sovereign immunity for all to a cause of action against dr. bukhari under the va immunity statute. the only 38 u.s.c. § 7316(f). thus, § 7316(f) allows the united states to be sued under the ftca 2680(h) inapplicable, § 7316(f) allows the united states to be sued for “assault, battery, inaction has not been inadvertent.” id. at 423. accordingly, it declined to authorize a va immunity statute. “consider the materials appended to the parties’ briefs,” aplt. app. at 166; thus, we will reverse.” id. (internal quotation marks omitted). bush, even though the court “assum[ed] . . . a federal right ha[d] been violated and the circumstances under which the federal government accepts liability for the acts of its at 502–03)). thus, in the context of va health care employees providing medical care or by its terms, § 233(a) limits recovery for such conduct to suits against the that one such provision is 42 u.s.c. § 233(a). hui, 130 s. ct. at 1855. similarly, we united states court of appeals subject matter against the health care employee (or employee’s estate) similarly, in schweiker v. chilicky, the court stated that “[t]he absence of 4 would have had any contact with plaintiff.” similarly, it found that “defendants federal court.” corr. servs. corp. v. malesko, 534 u.s. 61, 66 (2001) (citing bivens, 403 supporting personnel to qualify for immunity under § 7316(a)(1) or § 7316(f), they must 14 (d.c. no. 5:11-cv-00188-c) remedy available under the va immunity statute; indeed, the statute provides an amendment rights did not implicate the va immunity statute. thus, the court in green section 7316(f) expands § 7316(a)(1) to provide a remedy under the ftca for but dr. feng informed mr. ingram that “because of the report of the threat and the third cause of action under bivens. furnishing health care or treatment. id. because their interactions with mr. ingram took rights under the fourth and fifth amendments to the u.s. constitution. but the district designation includes no pertinent substantive changes”). but the relevant language that err in determining that the defendants were immune to suit as “health care employee[s]” should not authorize a judicial remedy under bivens v. six unknown named agents, 403 delise; kyle inhofe; lt. room setting,” id. at 102. contained in §7316(a); thus, our holding in franklin applies equally to 38 u.s.c. § 7316. having jurisdiction under 28 u.s.c. § 1291, we affirm on the basis that mr. ingram’s “[t]hought content has no suicidal, violent or paranoid ideations,” the report hui, the court stated: in bivens v. six unknown named agents of federal bureau of narcotics, 403 admission form against his will.” id. he also contends that “[t]he conduct of defendants § 7316(a)(1) creates an exclusive cause of action that precludes a bivens remedy. in hui, specifically, his claims indicate either that defendants’ actions were negligent and fell mr. ingram’s interests that is exclusive of any other cause of action arising from the same has decided against the existence of such an action.” minneci v. pollard, 132 s. ct. 617, on the court’s subject matter jurisdiction. stuart v. colo. interstate gas co., 271 f.3d bivens remedy to address the improper denial of social security disability benefits, id. at lacked subject matter jurisdiction over the action, because the federal tort claims act medical and dental technicians, nursing assistants, and therapists), or other medical opinion of physicians.” aplt. br. at 13. second, he also argues that defendants u.s. 388 (1971), the u.s. supreme “court recognized for the first time an implied private treatment . . . while in the exercise of [their] duties in or for the administration,” id. § 18 defendant delise (vamc’s acting assistant director) of the situation. mr. inhofe and ebel, circuit judge. the supreme court reversed the ninth circuit’s decision, holding that the text of as to mr. ingram’s second argument, we conclude that the district court did not substitute and can be viewed as equally effective,” and concluded that “§ 233(a) d[id] not 367. 4 offer the prospect of relief for injuries that must now go unredressed,” id. the supreme court concluded that 42 u.s.c. § 233(a) precluded a bivens action against treatment, 38 u.s.c. § 7316(f). as we noted in franklin, congress could have resolved for instance, in bush v. lucas, the court explained that the question whether a a theory that a battery occurred, which is defined as any contact with a hashib d. faruque, m.d.; yan as a result of the need for an evaluation by a medical professional. this reading, as does the provision’s inclusive reference to all civil claim arising out of a negligent or wrongful act or omission of any person the ftca to damages arising from the provision of medical services by health care id. § 7316(a)(1), or that they were wrongful acts or omissions that would implicate a that courts should award money damages against the officers responsible for the permitted to pursue a cause of action under bivens v. six unknown named agents, 403 moreover, “[f]or essentially the reasons given in [green], the [ninth circuit] court of the same subject-matter against the . . . employee . . . whose act or omission gave rise to statute that “other supporting personnel” must themselves be qualified to practice effective. aplt. br. at 16. mr. ingram misses the point. dr. bukhari is not a provisions, “[t]he remedy against the united states provided by sections 1346(b) and litigation.” id. might be based on a theory of negligence or a theory of battery. see id. and unless a contends that dr. faruque told him that “[a]s of this moment you have no say in this provide support for medical personnel, id. § 7316(a)(2), “in furnishing medical care or continued . . . “supporting personnel” is whether they were providing support to medical personnel in constitutional rights.” ashcroft v. iqbal, 556 u.s. 662, 675 (2009) (internal quotation 1221, 1225 (10th cir. 2001). where the party challenging subject-matter jurisdiction has proved to include an appropriate judicial deference to indications that congressional 7 waiver of sovereign immunity for certain intentional torts that is contained in 28 u.s.c. § and the defendants fall within the statute’s definition of health care employees. and tenth circuit therefore precludes a claim under bivens. within the scope of the va immunity statute. physician, dentist, podiatrist, chiropractor, optometrist, nurse, physician the emergency room for evaluation, in accordance with dr. bukhari’s instructions. mr. violation.” 487 u.s. 412, 421-22 (1988). indeed, the court held that “the concept of in franklin, we previously considered the purpose and effect of subsection (f). court declined to fashion a bivens remedy for a federal employee who claimed that his basis, mr. ingram was sufficiently ill “that immediate emergency action [was] instances, state law characterizes an act of medical malpractice as an relevant question to consider in determining whether the four defendants are other 130 s. ct. at 1851. the same is true here; the wording of § 7316(a)(1) indicates that the of process, libel, slander, misrepresentation, deceit, or interference with contract rights,” the district court. assume the employee’s liability. in essence, state law, which controls the the supreme court has determined that language similar to that contained in [sic], feng, . . . delise [sic], inhofe, lt. stevenson, and captain collins’ actions were — claiming that defendants had under the ftca to damages arising from the provision of medical services by health care mr. ingram also initially named as defendants david wood, director of the oklahoma example, if a patient consents to an operation on his left elbow, but the commissioned officer or employee of the public health service while at 170. viewing the evidence in the light most favorable to the district court’s ruling, the thus, although there may be circumstances where the availability of a remedy under the leave the emergency room. mr. ingram asserts that lt. stevenson said this “with his hand department of veteran affairs, but he later voluntarily dismissed these two parties. the remedy . . . against the united states provided by sections 1346(b) and ingram] be transferred from [the] er to [the psychiatric ward] under police escort.” id. ingram agreed to be admitted for further evaluation. dr. faruque’s report states that he tim collins; department of reclamation, 599 f.3d 1165, 1175 (10th cir. 2010). moreover, “[w]e review the there are some exceptions to the ftca’s waiver of sovereign immunity. enforcement at the san diego correctional facility. 130 s. ct. at 1848. while there, he their duties. 28 u.s.c. § 1346(b)(1). providing medical care. see franklin, 992 f.2d at 1502. u.s.c. § 4116. u.s. 388 (1971), because under the va immunity statute, the ftca provided the sole need not consider that argument as to defendants dr. faruque and dr. feng, because include subsection (f), “in circumstances where the government’s waiver of sovereign section will first set out the legal framework for analyzing the va immunity statute, and are not qualified for immunity under the statute because they do not fall within the affirmative action by congress,” or (2) “defendants show that congress has provided an definition of “other supporting personnel.” alternative remedy which it explicitly declared to be a substitute for recovery directly congress ha[d] provided a less than complete remedy for the wrong,” id. at 373, the 30 ingram’s claims, and therefore granted defendants’ motions to dismiss. specifically, the 24 remedy for his claims. the district court agreed, concluding that mr. ingram’s claims fell below an objective standard of care, which would implicate a claim of malpractice, see filed employees of the veteran’s administration (“va”). because of the availability of a his claims, such that he did not have available a cause of action under bivens. this 7316(a)(2) does not provide a definition for “other supporting personnel.” but the phrase denied making threats about his supervisor and stated that he wished to leave the hospital. as to the other defendants, the district court determined that they were acting as of the va immunity statute. as discussed above, the va immunity statute immunizes exercise of that employee’s duties in or for the administration shall be cont. hold that § 7316(a)(1) makes the va immunity statute an exclusive remedy and determination that is appropriate for a common-law tribunal, paying particular heed . . . to states.’” franklin, 992 f.2d at 1500 (emphasis in original) (quoting 1988 u.s.c.c.a.n. false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, and held in the psychiatric ward.” id. and finally, he asserts that “defendants furuque under the va immunity statute, and that he therefore could not bring an action under of the intentional torts listed in 28 u.s.c. § 2680(h), but “congress chose . . . ‘to expand feng, m.d.; david wood, donna treatment, § 7316(f) provides a remedy under the ftca for claims of intentional torts, conclusion a bivens remedy. see wilkie v. robbins, 551 u.s. 537, 550 (2007); accord minneci, 132 for harms caused by phs personnel in the course of their medical or related duties.” id. scope of” 38 u.s.c. §7316(f). franklin v. united states, 992 f.2d 1492, 1502 (10th cir. mr. ingram does not make any other arguments as to why defendants inhofe, delise, and it is therefore not appropriate to authorize a bivens (internal quotation marks omitted). here, the district court determined that it would 1993).4 existing process that amounts to a convincing reason to refrain from creating a new district court stated that he “determined that, because of the severity of the reported opinion, but instead was a result of intentional acts of defendants unrelated to any vamc staff psychiatrist) arrived. after dr. faruque arrived, he examined mr. ingram. ftca allows the united states to be sued for claims arising out of negligent or wrongful court concluded that mr. ingram had a remedy available under 38 u.s.c. § 7316 (“va supporting personnel. described in subsection (a) in furnishing medical care or treatment the district court agreed that it lacked subject matter jurisdiction over mr. conduct in the furnishing of medical care or treatment to veterans. suzanne mitchell, assistant united states attorney (sanford c. coats, united states shared this plan with dr. singhal, and that he “emphasized that [mr. ingram] is not to immunity statute”), which applies the remedy available against the united states under (vamc’s assistant chief of police) reported the threat to dr. nasreen bukhari (not a instead, the statute defines “health care employee” as rise to the claim. as background, in hui, a man was detained by u.s. immigration and customs available through the va immunity statute. and the language of the statute provides for reckless disregard,” aplt. app at 15, it is evident that he is arguing that defendants the va immunity statute applies the remedy available against the united states


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