Roemen v. United States of America et al

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UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
MICAH ROEMEN,
Plaintiff,
TOM TEN EYCK and MICHELLE TEN
EYCK, Guardians of Morgan Ten Eyck,
Plaintiffs,
vs.
UNITED STATES OF AMERICA, ROBERT
NEUENFELDT, individually and UNKNOWN
SUPERVISORY PERSONNEL OF THE
UNITED STATES, individually,
Defendants.
4:19-CV-4006-LLP
ORDER
Plaintiff Micah Roemen and Morgan Ten Eyck filed complaints against the United States
of America, and against Robert Neuenfeldt and Unknown Supervisory Personnel of the United
States in their individual capacities. Docs. 21 (19-4006); 1 (19-4007). Per the Court’s August 10,
2020 Order, these cases have been consolidated under Civ. No. 19-4006. Docs. 35 (19-4006); 30
(19-4007).
Count I of Plaintiffs’ complaints is a negligence claim and Count III is a common law
assault and battery claim. Docs. 21 (19-4006); 1 (19-4007). As stated by the Court in its May 28,
2020, Memorandum Opinion and Order, “[u]nder the [Federal Tort Claims Act], the United States
is liable, as a private person, for ‘injury or loss of property, or personal injury or death cause by
the negligent or wrongful act or omission of any employee of the Government while acting under
the scope of his office or employment.” The Court acknowledged in that May 2020 opinion that
the United States Attorney had filed a Certification of Scope of Employment pursuant to 28 C.F.R.
§ 15.4 certifying that Neuenfeldt was an employee of the federal government and was acting within
the scope of his office or employment at the time of the alleged conduct with respect to Counts I
and III of the complaints alleging negligence and common law assault and battery. Accordingly,
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the Court dismissed without prejudice Counts I and III as alleged against Neuenfeldt. Presently,
the Government is the sole defendant with respect to these Federal Tort Claims Act (“FTCA”)
claims.
Counts II of and IV of Plaintiffs’ complaints are Bivens claims. Docs. 21 (19-4006); 1 (19-
4007). Specifically, Count II alleges that Neuenfeldt, acting under color of federal law, violated
Plaintiffs’ rights under the Fourth Amendment to be free from unreasonable searches and seizures
and deprived them of their right to life and liberty under the Fifth Amendment without due process
of law. Docs. 1, ¶¶ 41-54; 21, ¶¶ 40-52. Count IV alleges that “Unknown Supervisory Personnel
of the United States” “implemented and maintained customs, policies, and/or practices to
encourage the use of excessive force by Defendant Neuenfeldt” and that they “participated in,
encouraged, fostered, condoned, and ratified the conduct of Defendant Neuenfeldt when [he] used
excessive force in the pursuit and injuring of [Plaintiffs].”
Plaintiffs and Defendant Neuenfeldt have moved for a jury trial on all issues so triable.
Docs. 21, 32 (19-4006); 1, 27 (19-4007). The United States, in its Ninth Affirmative Defense to
Plaintiffs’ complaints, has stated that Plaintiffs are not entitled to a jury trial on the Federal Tort
Claims Act cases and requests a court trial. Docs. 22 (19-4006); 13 (19-4007).
The FTCA claims (Counts I and III) will be tried to the Court since there is no right to a
jury trial under the FTCA. 	See Carlson v. Green, 446 U.S. 14, 28 n.1 (1980) (Powell, J. and
Stewart, J., concurring). 	There is a right to a jury trial on Bivens claims and Plaintiffs’ Bivens
claims (Counts II and IV) will be tried to a jury. 	Estate of Trentadue ex rel. Aguilar v. United
States, 397 F.3d 840, 858 (10th Cir. 2005) (citing United States v. Yellow Cab Co., 340 U.S. 543,
55-56 (1951) (suggesting bifurcation when FTCA claims are joined with claims carrying the right
to a jury)). Given that a judgment in a FTCA claim may preclude Plaintiffs from bringing a Bivens
claim regarding the same subject matter, it appears to the Court that Plaintiffs should elect which
claims are first tried. 	See Simmons v. Himmelreich, 136 S.Ct. 1843, 1847 (2016) (“Under the
judgment bar provision, once a plaintiff receives a judgment (favorable or not) in an FTCA suit,
he generally cannot proceed with a suit against an individual employee based on the same
underlying facts.”); Manning v. United States, 546 F.3d 430, 437-38 (7th Cir. 2008) (holding that
judgment on an FTCA claim requires a vacatur of an earlier judgment on a Bivens claim); Estate
v. Trentadue ex rel. Aguilar v. United States, 397 F.3d 840, 859 (10th Cir. 2005) (holding that the
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judgment bar rule applies to retroactively bar a Bivens judgment entered prior to a FTCA
judgment).
Accordingly, it is hereby ORDERED that on or before December 18, 2020, Plaintiffs shall
inform the Court in a filing whether they intend to first try their Bivens or FTCA claims. 	The
Court will subsequently issue an order setting trial dates.
Dated this 9th day of December, 2020.
BY THE COURT:
________________________________
Lawrence L. Piersol
United States District Judge
ATTEST:
MATTHEW W. THELEN, CLERK
______________________________
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