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THORNWELL v. UNITED STATES

May 30, 1979

James R. THORNWELL, Plaintiff,
v.
UNITED STATES of America et al., Defendants



The opinion of the court was delivered by: RICHEY

MEMORANDUM OPINION

This case is before the Court on defendants' motion to dismiss. Plaintiff, Mr. James Thornwell, is a former serviceman who seeks to recover for injuries which he sustained both before, and after, his discharge from the United States Army. The named defendants include the United States as well as twenty-nine individuals who, Mr. Thornwell asserts, all participated in the tortious conduct which led to his injuries. Although Mr. Thornwell may have employed a shotgun approach in naming his defendants, the defendants attempt to benefit from the same method in their motion to dismiss. The motion before the Court raises a host of substantive and procedural issues and, after reviewing the relevant statutes and case law, the Court is drawn to the conclusion that it must dismiss counts I, II, III, and IV, as well as counts VII and VIII. The Court, however, shall deny defendants' motion to dismiss Counts V and VI. The Court also rejects defendants' assertion that venue is improper and it postpones a definitive ruling on their claim that personal jurisdiction is wanting.

 On a motion to dismiss the Court must assume not only the truth of plaintiff's allegations but also all reasonable inferences which may be deduced from those allegations. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). Thus, the Court accepts the truth of Mr. Thornwell's charge that he has been the victim of a brutal and shameless scheme of human experimentation and that for sixteen years, a host of government officials have successfully barred him from discovering the cause of the mental anguish which has shattered his life.

 The first incident from which Mr. Thornwell's claims arise occurred in France in June 1961. At the time, Mr. Thornwell was a private in the United States Army, and he had been imprisoned as part of an Army investigation into the theft of approximately one hundred classified documents. While in prison, Mr. Thornwell was subjected to a battery of harsh interrogation techniques: He was confined "for months" to a small, windowless, unlit "isolation chamber," where he was deprived of sleep and toilet facilities; he was interrogated for as long as seventy hours at a time; during interrogation he was "physically abused," "terrified with threats of . . . death," and "degraded by a steady stream of verbal abuse, including racial slurs and accusations of sexual impropriety." Complaint P 39 (filed Oct. 2, 1978).

 This phase of Mr. Thornwell's interrogation ended when a special team of Army officers arrived on the scene as part of "Operation Third Chance." Operation Third Chance was a covert program designed to test the utility of a psychedelic chemical, lysergic acid diethylamide ("LSD"), as an aid to interrogation; it involved the surreptitious, nonconsensual administration of LSD to foreign nationals who were then questioned under conditions of extreme physical and mental stress. Evidently, by special permission, Mr. Thornwell became the sole exception to the "foreign national" limitation on the scope of Operation Third Chance. Id. P 36.

 As part of this covert program in human experimentation, Mr. Thornwell was secretly drugged with LSD and then subjected to further physical and mental degradation. The official report prepared by the Operation Third Chance special purpose team explained that the experiment on Mr. Thornwell demonstrated the "usefulness of employing as a duress factor the device of inviting the subjects' attention to his (LSD) influenced state and threatening to extend this state indefinitely, even to a permanent condition of insanity or to bring it to an end at the discretion of the interrogators. . . ." Id. P 41. The report also concluded that in Mr. Thornwell's case, the drug produced an "extreme paranoic reaction" which was "highly sustained and almost incapacitating." Id. P 40. Four months after the test, Mr. Thornwell received a general discharge from the Army.

 The transformation to civilian status, however, did not free Mr. Thornwell from the wrongs inflicted by his alleged tortfeasors. Despite his efforts to ascertain the cause or causes of his condition of ceaseless misery, the defendants deliberately concealed from him the facts and circumstances of the drug experiment. Id. PP 46-48. Even after the Department of Defense had assured Congress that the facts of LSD testing would be disclosed to all subjects of the experiments, Mr. Thornwell remained uninformed about his own participation in the tests. In the alternative, Mr. Thornwell claims that the defendants, who had assumed the burden of aiding men in his condition, were negligent in failing to provide him with examinations and treatment.

 This non-consensual venture in human experimentation has, Mr. Thornwell asserts, caused him the gravest injury. As a direct consequence of the surreptitious drugging and the subsequent cover-up, Mr. Thornwell complains that for the last seventeen years, he has suffered and continues to suffer from serious mental illness and severe physical pain. Moreover, during this same period, he has been unable to maintain any gainful employment for more than short periods. In sum, Mr. Thornwell has been transformed from a productive, healthy individual into an isolated social and emotional cripple, deprived of the pleasant experiences of human society. Id. PP 56-60.

 Mr. Thornwell's complaint is phrased in terms of eight separate counts. In count I, he alleges that a sub-group of the defendants violated his privacy rights under the first, fourth, fifth and ninth amendments, by surreptitiously administering LSD and then conducting interrogations under conditions of severe stress. Count II asserts that these same acts deprived him of his right to due process under the fifth amendment and count III claims that the conduct was cruel and unusual punishment violative of the eighth amendment. Count IV sounds in common law tort and alleges that the drugging and harassment constitute assault and battery, as well as intentional infliction of emotional distress. Counts V and VI address the wrongs which occurred after Mr. Thornwell's discharge from the military: in count V, he alleges that the defendants' concealment of the drugging and their failure to provide him with follow-up medical treatment violated his due process rights under the fifth amendment; in count VI, he alleges that the failure to provide follow-up assistance, by itself, was negligent. Counts VII and VIII assert that the drugging and cover-up violate 42 U.S.C. §§ 1985(3) and 1986, respectively.

 II. THE COURT MUST DISMISS PLAINTIFF'S CLAIM FOR INJURIES OCCURRING WHILE ON ACTIVE DUTY

 In Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950), the Supreme Court established the doctrine of intra-military immunity, and where plaintiffs have sought recovery for injuries sustained in the course of military service, lower courts have consistently construed the Feres doctrine of immunity broadly. Feres actually belongs to a series of Supreme Court decisions involving the tort liability of the military. In the first case, Brooks v. United States, 337 U.S. 49, 69 S. Ct. 918, 93 L. Ed. 1200 (1949), the petitioner was a soldier who had been struck by a military car while he was on furlough; the Court ruled that, in view of the petitioner's lack of involvement in military affairs at the time of the accident, recovery was appropriate. The following year, in Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950), the Court reviewed three claims by soldiers who had been harmed by the negligence of their military superiors; it concluded, "(T)he Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." 340 U.S. at 146, 71 S. Ct. at 159. Finally, in United States v. Brown, 348 U.S. 110, 75 S. Ct. 141, 99 L. Ed. 139 (1954), the Court examined the claim of a veteran who alleged medical malpractice by an Army surgeon in the course of treating a wound received six years earlier while on active duty in the armed services. Relying on Mr. Brown's "civilian status" at the time of the alleged wrong, 348 U.S. at 112, 75 S. Ct. 141, the Court ruled that Feres had no application. Although all three of these decisions involved liability under the Federal Tort Claims Act, it is clear that the doctrine of immunity also extends to defendants named in their individual capacity. Bailey v. DeQuevedo, 375 F.2d 72 (3d Cir.), Cert. denied, 389 U.S. 923, 88 S. Ct. 247, 19 L. Ed. 2d 274 (1967); Levin v. United States, 403 F. Supp. 99, 104 (D.Mass.1975).

 Recently, in Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S. Ct. 2054, 52 L. Ed. 2d 665 (1977), the Supreme Court had an opportunity to re-consider Feres, and it again elected a broad application of the decision. In addition, the Court explained the three factors underlying the Feres doctrine of intra-military immunity:

 431 U.S. at 671, 97 S. Ct. at 2058 (quoting Feres v. United States, supra, 340 U.S. at 143, 71 S. Ct. 153 and United States v. Brown, supra, 348 U.S. at 112, 75 S. Ct. 141, respectively.) The application of these factors to Mr. Thornwell's claims compels the conclusion that counts I-IV must be dismissed. *fn1"

 Plaintiff asserts that his case is factually distinguishable from the situations involved in Feres because he seeks recovery for intentional torts as well as constitutional violations. Although in Feres, the Supreme Court only reviewed claims alleging negligence on the part of the military, neither the language nor the rationale of the Court's decision indicates that the legal theory of a soldier's claim ought to be a salient factor in determining the scope of intra-military immunity. In explaining its holding, the Court broadly provided immunity for "Injuries " which "arise out of or are in the course of activity incident to (military) service." 340 U.S. at 146, 71 S. Ct. at 159 (emphasis added). The constitutional and intentional tort claims raised in counts I-IV clearly involve such injuries. In addition, recovery for intentional torts, the elements of which may vary from jurisdiction to jurisdiction, would certainly impinge upon the "distinctively federal" relationship between the government and its armed forces. See 340 U.S. at 143, 71 S. Ct. 153. Moreover, intentional tort claims as well as claims for constitutional wrongs are both covered by the Veterans Benefits Act, 38 U.S.C. § 301 Et seq. (1976). See 431 U.S. at 671, 97 S. Ct. 2054, 52 L. Ed. 2d 665. Finally, "(t)he peculiar and special relationship of the soldier to his superiors," 348 U.S. at 112, 75 S. Ct. at 143, would be affected by Any personal injury claim, whether phrased in terms of negligent, intentional or constitutional wrong. Accordingly, Feres v. United States, supra, by itself, compels the dismissal of counts I-IV.

 Other courts have also uniformly recognized that the Feres bar extends to both constitutional and intentional torts. In Citizen's National Bank of Waukeegan v. United States, No. 77-1974, slip op. at 7 (N.D.Ill.Feb. 15, 1978), the court explained, "(T)he logic of Feres does not permit a principled distinction between negligent and intentional torts." Accord, Levin v. United States, 403 F. Supp. 99 (D.Mass.1975); Rotko v. Abrams, 338 F. Supp. 46 (D.Conn.1971), Aff'd per curiam, 455 F.2d 992 (2d Cir. 1972). The court further noted that such a distinction was without precedent. No. 77-1974, slip op. at 6. In Misko v. United States, 453 F. Supp. 513 (D.D.C.1978), Aff'd mem. on other grounds, 193 U.S. App. D.C. 217, 593 F.2d 1371 (1979), Judge Sirica similarly found that the Feres bar extended to constitutional claims. The identical conclusion was recently reached in Jaffee v. United States, 468 F. Supp. 632 (D.N.J.1979). *fn2"

 III. UNDER GRIFFIN v. BRECKENRIDGE, 403 U.S. 88 (91 S. Ct. 1790, 29 L. Ed. 2d 338) (1970), THE COURT MUST DISMISS COUNTS VII & VIII

 In count VII, Mr. Thornwell seeks recovery for defendants' alleged violation of 42 U.S.C. § 1985(3). Count VIII is based on 42 U.S.C. § 1986, which permits recovery against individuals who fail to prevent the conduct proscribed by section 1985(3). In light of two factors (1) the Court's decision to bar all of plaintiff's claims arising out of his service in the Armed Forces, and (2) Griffin v. Breckenridge, 403 U.S. 88, 91 S. Ct. 1790, 29 L. Ed. 2d 338 (1970), counts VII and VIII must be dismissed. Yet, because of the early stage of this litigation, the dismissal is without prejudice. In the event that, through discovery, plaintiff collects evidence which satisfies the standard established in Griffin v. Breckenridge, supra, he will certainly be entitled to renew these two claims.

 First, in dismissing counts I-IV, the Court held that the Feres bar extended to All personal injury claims which arise out of, or are incident to, service in the Armed Forces. Although counts VII and VIII seek recovery for injuries sustained in the course of active duty as well as those incurred after discharge, this Court's holding with respect to counts I-IV compels the conclusion that these two counts are barred to the extent that they pertain directly to Mr. Thornwell's service in the Army. See Birdwell v. Schlesinger, 403 F. Supp. 710, 718 (D.Colo.1975). With respect to the remainder of counts VII and VIII that portion involving post-discharge discrimination it ...


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