Clinton v. Brown (Lawyers Weekly No. 15-04-0844, 11 pp.) (Frank Whitney, J.) 3:15-cv-0048; W.D.N.C.
Holding: A constitutional remedy under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), is only available for claims arising under the Fourth, Fifth, and Eighth Amendments to the U.S. Constitution. Since plaintiff alleges a violation of his First Amendment rights, he has not stated a Bivens claim.
The court grants defendant’s motion to dismiss.
Plaintiff, a Jehovah’s Witness, alleges that the defendant-doctor pressured him to change his religion so he could accept blood products during surgery. The doctor allegedly went so far as to reveal plaintiff’s former drug use to plaintiff’s son. Plaintiff sought treatment elsewhere.
The U.S. Supreme Court has expressly declined to extend Bivens to a claim sounding in the First Amendment.
In the alternative to a Fourth, Fifth, or Eighth Amendment violation, Bivens actions can be implied where administrative remedies have been exhausted. Plaintiff filed a claim against defendant under the Federal Tort Claims Act of 1974; however, the claim failed to demand a sum certain. Although plaintiff was informed that his claim was incomplete, he failed to take further action.
Plaintiff had an available alternative remedy under the FTCA. Since plaintiff did not exhaust all available administrative remedies, this claim should be dismissed pursuant to Fed. R. Civ. P. 12(b)(1).
In addition, defendant is immune from Bivens suits because Congress has declared the FTCA to be the exclusive remedy in cases involving the Veterans Administration Immunity Statute, 38 U.S.C. § 7316.
Finally, the complaint does not sufficiently allege purposeful discrimination so as to overcome the qualified immunity doctrine. Therefore, defendant would be immune from personal liability even if the court were to imply a Bivens action.