Ricks v. Nickels

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUL 9 2002
UNITED STATES COURT OF APPEALS
PATRICK FISHER
TENTH CIRCUIT Clerk

JOHN M. RICKS,

Plaintiff - Appellant,

v.

MARVIN L. NICKELS, Commandant
USDB Ft. Leavenworth; FRED W.
BUCHER, S-3 Operations Officer,
Assistant Chief of Staff; (NFN)
ROBINSON, S-3 Operations Officer, No. 00-3176
Major; MARK P. SPEERE, Air Force
Detachment Commander; (NFN)
STIEGER, NCOIC/ANCOIC of S-3
Operations, USDB Ft. Leavenworth;
(NFN) MINTON, NCOIC/ANCOIC of
S-3 Operations, USDB Ft.
Leavenworth; (NFN) WILLIAMS;
(NFN) COOK; (NFN) RUDNICKI;
(NFN) ARTHUR; (NFN) MITCHELL;
(NFN) (NMI) MARTIN, all in various
command/supervisory/administrative
positions; JOHN AND JANE DOES,
1-700 are correctional, administrative,
or supervisory officials on USDB
policies,

Defendants - Appellees.

Appeal from the United States District Court
for the District of Kansas
(D.C. No. 97-CV-3280-JTM)
Alison Ruttenberg, Boulder, Colorado, for Plaintiff-Appellant.

Major James Roger Agar II, Of Counsel, U.S. Army Litigation Division,
(Lieutenant Colonel Tara A. Osborn, Of Counsel, U.S. Army Litigation Division;
James E. Flory, United States Attorney, Topeka, Kansas; D. Brad Bailey,
Assistant United States Attorney, Topeka, Kansas; with him on the brief), for
Defendants-Appellees.

Before HENRY, BALDOCK, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

I. INTRODUCTION

Plaintiff-Appellant John M. Ricks appeals an order dismissing his claims

brought under Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics against Defendants-Appellees for alleged constitutional violations

incurred while incarcerated at the United States Disciplinary Barracks (USDB).

See Bivens, 403 U.S. 388 (1971). The issue presented is whether the Feres

doctrine bars a military prisoner’s Bivens claims for damages arising from alleged

injuries sustained after the prisoner has received a complete punitive discharge

from service. See Feres v. United States, 340 U.S. 135 (1950). We have

jurisdiction under 28 U.S.C. § 1291. Because Ricks’ Bivens claims arise from

events incident to his military service, this court affirms.

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II. BACKGROUND

Ricks originally enlisted in the United States Air Force. After a trial and

conviction for violations of Articles 85 and 134 of the Uniform Code of Military

Justice (UCMJ), a general court-martial sentenced Ricks to fifteen years

imprisonment. Ricks received a dishonorable discharge on March 28, 1996,

which was executed on April 3, 1996. 1

At the time he filed the original complaint, Ricks was serving his sentence

at the USDB in Forth Leavenworth, Kansas. The USDB is the Army Corrections

System maximum custody facility and provides long-term incarceration for

enlisted and officer personnel of the armed forces. No civilians are confined at

the USDB. The USDB is run by the Commandant, a United States Army military

police officer. Military police serve as correctional officers at the USDB, which

does not employ civilian guards. At the time of the complaint, all named

Defendants were active duty members of the United States Army, serving in their

1
The government contends in its initial answer brief that Ricks was “not
served with his discharge until September 15, 1998, when he was transferred to
the Bureau of Federal Prisons.” Ricks attached to his initial reply brief
documentation that he was served with a DD Form 214, which memorializes the
punitive discharge, on April 3, 1996. The government does not challenge Ricks’
assertion in its supplemental briefing. As such, this court accepts as true Ricks’
assertion that his discharge from military service was executed prior to the
unconstitutional acts alleged in his complaint.

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official capacities as Commandant, noncommissioned officers, guards, and

administrative support for the USDB.

Ricks filed a complaint pro se, later amended, in the United States District

Court for the District of Kansas seeking injunctive, mandamus, and monetary

relief, as well as administrative sentence credit for alleged violations of his First,

Fifth, and Eighth Amendment rights. Ricks alleged, inter alia, that the

Defendants’ various violations of his First Amendment rights included retaliation

for filing litigation against the Defendants. Ricks also claims that he was

sexually assaulted by prison guards during frisk searches on November 8, 1997

and January 13, 1998 and that his administrative complaints were ignored or

summarily rejected.

The district court initially dismissed all claims except Ricks’ First

Amendment retaliation claim for punitive and nominal damages 2 and his sexual

assault claims for compensatory and punitive damages. Ricks does not appeal the

district court’s dismissal of his other claims. Although the Defendants argued

that all claims were barred by the Feres doctrine, the district court stated that it

was unable to determine whether Feres applied because Ricks had not indicated

when he had been discharged. Thereafter, the Defendants brought another motion

2
The district court dismissed Ricks’ claim for compensatory damages with
respect to his retaliation claim, citing Perkins v. Kansas Department of
Corrections, 165 F.3d 803 (10th Cir. 1999). Ricks does not appeal this decision.

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to dismiss, renewing their Feres doctrine argument. After additional briefing and

further consideration, the district court dismissed Ricks’ remaining claims as

barred by Feres.

During the pendency of the lawsuit in district court, Ricks was transferred

to the custody of the United States Bureau of Prisons. Because Ricks seeks only

monetary damages on appeal, his transfer does not moot his claims. The only

issue before this court is whether the district court properly dismissed Ricks’

Bivens claims for damages pursuant to the Feres doctrine. 3

III. DISCUSSION

A. Standard of Review

Although not specifically stated in its order, this court assumes that the

district court dismissed Ricks’ claims under the Feres doctrine pursuant to

Federal Rule of Civil Procedure 12(b)(1). See Dreier v. United States, 106 F.3d

844, 847 (9th Cir. 1997) (explaining that motion to dismiss pursuant to Feres

doctrine is properly treated as a Rule 12(b)(1) motion to dismiss). Accordingly,

this court reviews the district court’s dismissal for lack of subject matter

3
Ricks initially filed his appeal pro se. After briefing, this court appointed
counsel to represent Ricks and permitted supplemental briefing. Ricks
subsequently filed a notice with this court, which was construed as a motion to
withdraw and substitute counsel. The order granting the motion was not entered
until after both Ricks’ appointed and retained counsel filed supplemental briefs.
Because both briefs are properly before this court, we have considered them in the
disposition of this appeal.

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jurisdiction de novo. Quintana v. United States, 997 F.2d 711, 712 (10th Cir.

1993). Because the Defendants challenge the sufficiency of Ricks’ complaint to

satisfy subject matter jurisdiction, and not Ricks’ factual allegations, this court

must accept the allegations in the complaint as true. See Holt v. United States, 46

F.3d 1000, 1002-03 (10th Cir. 1995). Allegations in a pro se complaint are

construed liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per

curiam).

B. Incident to Service Test

In Feres, the Supreme Court created a judicial exception to the broad

waiver of sovereign immunity in the Federal Tort Claims Act (FTCA). See 340

U.S. at 146. The federal government cannot be liable under the FTCA “for

injuries to servicemen where the injuries arise out of or are in the course of

activity incident to service.” Id. The Supreme Court subsequently applied the

exception created in Feres to damage actions under Bivens. See Chappell v.

Wallace, 462 U.S. 296, 305 (1983).

Relying on language in Feres, courts have applied the “incident to service”

test. Originally, this test was cast in narrow terms, barring enlisted military

personnel from bringing FTCA claims against a superior officer. See id. at 305.

In subsequent cases, the federal courts have expanded the reach of the Feres

doctrine. See, e.g. , United States v. Stanley , 483 U.S. 669 (1987) (applying Feres

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to bar Bivens claims for damages against military and civilian officials for

injuries resulting from the military’s intentional administration of LSD to

unwitting volunteer); United States v. Johnson , 481 U.S. 681 (1987) (applying

Feres to bar an FTCA claim against the United States alleging negligence by

civilian employees of the Federal Aviation Administration); United States v.

Shearer , 473 U.S. 52 (1985) (applying Feres to FTCA claim arising from the

decedent servicemember’s murder committed by a fellow servicemember which

occurred off-duty and off-base); Stencel Aero Eng’g Corp. v. United States , 431

U.S. 666 (1977) (applying Feres to bar defendant corporation’s cross-claim

against United States for indemnification of servicemember’s injuries arising

from military activities); Pringle v. United States , 208 F.3d 1220 (10th Cir. 2000)

(per curiam) (applying Feres to a FTCA claim for injuries sustained from a

beating after plaintiff servicemember was ejected from a military club);

Quintana , 977 F.2d 711 (applying Feres to reserve servicemember’s medical

malpractice FTCA claim for injuries sustained from military training).

Courts have broadened the scope of the incident to service test to

encompass injuries that are attenuated from the servicemember’s duty status. In

Pringle , this court stated:

In recent years, the Supreme Court has broadened Feres, to the
point where it now encompasses, at a minimum, all injuries suffered
by military personnel that are even remotely related to the
individual’s status as a member of the military. Courts applying the

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 Feres doctrine have given a broad reach to Feres’ “incident to
service” test and have barred recovery by members of the armed
services for injuries that at first blush may not have appeared to be
closely related to their military service or status. Practically any suit
that implicates the military’s judgments and decisions runs the risk
of colliding with Feres.

208 F.3d at 1223-24 (quotations, citations, and alterations omitted). As a result

of the broad application of the incident to service test, “the Feres doctrine has

been applied consistently to bar all suits on behalf of service members against the

Government based upon service-related injuries.” See Johnson, 481 U.S. at 687-

88 (emphasis added); see also Quintana, 997 F.2d at 712 (reasoning that Feres

should bar plaintiff’s FTCA injuries “precisely because of” her relationship to the

military). The Supreme Court has emphasized that it has never deviated from the

incident to service test. See Johnson , 481 U.S. at 686 (citing cases).

C. “Special Factors” Analysis

Federal courts have employed a second test which examines whether

applying Feres would further its underlying purposes in a particular case. The

Supreme Court in Feres gave several justifications for the doctrine, but courts

have subsequently emphasized three purposes when determining Feres ’

applicability: “(1) the distinctly federal nature of the relationship between the

government and members of its armed forces; (2) the availability of alternative

compensation systems; and (3) the fear of damaging the military disciplinary

structure.” Walden v. Bartlett , 840 F.2d 771, 773 (10th Cir. 1988) (quotation and

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alteration omitted); see also Chappell , 462 U.S. at 299; Stencel , 431 U.S. at 671.

The Supreme Court has stated that these three factors comprise the “special

factors” analysis. See Chappell, 462 U.S. at 298-99 (citing Bivens, 403 U.S. at

396).

While the incident to service test has been reaffirmed and broadened in

recent Feres cases, the reasoning and application of the “special factors” analysis

have been criticized. See Johnson, 481 U.S. at 692-703 (Scalia, J., dissenting)

(criticizing the rationale of each factor); Stencel, 431 U.S. at 674-77 (Marshall, J.,

dissenting) (disagreeing with the application of Feres’ special factors analysis to

a defendant corporation’s indemnity claim against the government).

In applying the “special factors” analysis, several courts have discussed the

test without adducing how the underlying purposes of Feres are actually furthered

in a particular case. In Johnson, for example, the Supreme Court recited the

“special factors” analysis but did not actually examine how the purposes were

furthered by applying the Feres doctrine. See Johnson, 481 U.S. at 688-92; see

also Walden, 840 F.2d at 773-74 (same).

As for the viability of the three special factors, the Supreme Court has

stated that the first two rationales, the distinctly federal nature of the government-

military relationship and the availability of alternative compensation systems, are

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“no longer controlling.” See Shearer, 473 U.S. at 58 n.4. 4 Concomitant with the

diminishing importance of the first two special factors, however, is the increasing

emphasis on the third, the importance of the military disciplinary structure. This

rationale has been labeled the “best expla[nation]” for Feres. See Chappell, 462

U.S. at 299; see also Pringle, 208 F.3d at 1227 (calling the military discipline

rationale the “most important”). Within this rationale, there are apparently two

interrelated strains of reasoning: (1) the general policy to limit litigation that

could undermine the unique hierarchical and disciplinary structure of the military;

and (2) separation of powers concerns that the judiciary should not delve into the

internal affairs of the military. See Stanley, 483 U.S. at 679; Shearer, 473 U.S. at

57; Chappell, 462 U.S. at 300-02. With respect to the latter, courts have

emphasized that governance and oversight of the military have been

constitutionally committed to Congress and the executive branch. See Chappell,

462 U.S. at 301. There is a judicial concern that any “trial would . . . involve

second-guessing military orders, and would often require members of the Armed

4
Indeed, the Supreme Court explained that whether a servicemember has
adequate federal remedies for his injuries is “irrelevant.” United States v.
Stanley, 483 U.S. 669, 683 (1987) (“The special factor that counsels hesitation is
not the fact that Congress has chosen to afford some manner of relief in the
particular case, but the fact that congressionally uninvited intrusion into military
affairs by the judiciary is inappropriate.” (alterations omitted)).

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Services to testify in court as to each other’s decisions and actions.” Stencel, 431

U.S. at 673. 5

Formalistic application of the “special factors” analysis and the increasing

emphasis on only the military discipline factor were addressed in Stanley, the

Supreme Court’s most recent exposition on the reach of Feres. In Stanley, the

Supreme Court considered a former servicemember’s Bivens claims for damages

against military and civilian officials for injuries originating from the Army’s

secret administration of LSD to unsuspecting active-duty volunteers. See 483

U.S. at 671-72. After stating that Feres established an incident to service test, the

Court shifted its discussion to the “special factors” analysis. See id. at 681-82.

Importantly, however, Stanley did not mention the first two factors. The Stanley

Court then candidly admitted that “there are varying levels of generality at which

one may apply ‘special factors’ analysis.” Id. at 681. The appropriate level of

generality “depends upon how prophylactic one thinks the prohibition should be

(i.e., how much occasional, unintended impairment of military discipline one is

5
In the context of civilian court review of servicemembers’ habeas claims,
the Supreme Court has explained that Congress created the military courts to
provide a separate system of justice for servicemembers which must be respected
by the civilian courts. See Schlesinger v. Councilman, 420 U.S. 738, 758 (1975)
(“[I]t must be assumed that the military court system will vindicate servicemen’s
constitutional rights.”); Burns v. Wilson, 346 U.S. 137, 140-42 (1953) (plurality
opinion).

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willing to tolerate), which in turn depends upon how harmful and inappropriate

judicial intrusion upon military discipline is thought to be.” Id.

The Court explicitly rejected a special factors analysis which would

consider how miliary discipline would actually be affected in a particular case.

See id. Instead, the appropriate level of generality is to “disallow Bivens actions

whenever the injury arises out of activity ‘incident to service.’” Id. Stanley thus

effectively merged the “special factors” analysis with the incident to service test.

Discussing the effect a suit could have on military discipline, the Court

concluded:

A test for liability that depends on the extent to which particular suits
would call into question military discipline and decisionmaking
would itself require judicial inquiry into, and hence intrusion upon,
military matters. Whether a case implicates those concerns would
often be problematic, raising the prospect of compelled depositions
and trial testimony by military officers concerning the details of their
military commands. Even putting aside the risk of erroneous judicial
conclusions (which would becloud military decisionmaking), the
mere process of arriving at correct conclusions would disrupt the
military regime. The “incident to service” test, by contrast, provides
a line that is relatively clear and that can be discerned with less
extensive inquiry into military matters.

Id. at 682-83 (emphasis added). Stanley made clear that the incident to service

test rests squarely on the third “special factor” of preserving the military’s

disciplinary structure and Congress’ prerogative in regulating intramilitary affairs.

See id. at 683. The Court concluded that the plaintiff’s claims were barred by

Feres because they were incident to service. Id. at 684.

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 In applying Stanley and rejecting the argument that inquiry should be made

to determine how military discipline and command would actually be affected in a

particular case, this court stated that the Supreme Court has “rejected a case-by-

case review of service members’ damage[s] actions because it would involve

judicial inquiry into, and intrusion upon, military matters.” Walden, 840 F.2d at

774 (citing Johnson and Stanley). “[I]n the last analysis, Feres seems best

explained by the peculiar and special relationship of the soldier to his superiors,

and the effects on the maintenance of such suits on discipline . . . .” Chappell,

462 U.S. at 299 (quotation omitted). In accordance with Stanley and Walden, we

apply the incident to service test. 6

D. Effect of Ricks’ Fully Executed Dishonorable Discharge

“[N]o Bivens remedy is available for injuries that arise out of or are in the

course of activity incident to service.” Stanley, 483 U.S. at 684 (quotation

omitted). Ricks argues that because he was fully discharged at the time of the

alleged injuries, his claims are not incident to service. A complete discharge,

however, does not automatically transform a servicemember into a civilian for

purposes of Feres analysis. The paramount inquiry is whether the alleged

constitutional violations are incident to the plaintiff’s military service. See Wake

v. United States , 89 F.3d 53, 60 (2d Cir. 1996) (“The dispositive inquiry . . . is

Ricks acknowledges that the incident to service test governs our Feres
6

doctrine analysis.

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not whether the plaintiff was lawfully on active duty at the time his claims arose,

but whether he stood in the sort of relationship to the Air Force at the time of the

incidents in question that those incidents arose out of activity incident to

service.” (quotation and alterations omitted)).

In Quintana , this court applied Feres to bar a reserve servicemember’s

FTCA claims for injuries sustained as a result of a military surgeon’s medical

negligence. See 997 F.2d at 712. As a member of the New Mexico National

Guard and the United States Army National Guard, the plaintiff was participating

in “inactive duty training” at the time of her injuries. See id. We rejected the

plaintiff’s argument that Feres was inapplicable to her claims because she was on

reserve status. See id. “[W]e have previously held that active duty status is not

necessary for the Feres ‘incident to service’ test to apply.” Id. The relevant fact

was that her injuries arose from her military relationship, not her status as a

reserve member of the national guard.

In the habeas context, courts have held that a complete military discharge

does not necessarily deprive the military of jurisdiction over the plaintiff. See

Kahn v. Anderson , 255 U.S. 1, 8-9 (1920); Ragan v. Cox , 320 F.2d 815, 816-17

(10th Cir. 1963). Kahn and Ragan involved military prisoners at the USDB who,

upon court-martial for crimes or UCMJ violations committed during

incarceration, challenged their imprisonment and argued that their prior

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discharges rendered them civilians and thus not subject to military law. See

Kahn , 255 U.S. at 6-7; Ragan , 320 F.2d at 816. The courts held that each

prisoner’s discharge was immaterial, since each remained subject to military law

and trial by court-martial for offenses committed during imprisonment. See

Kahn , 255 U.S. at 8 (noting that petitioner “was a military prisoner though he had

ceased to be a soldier”); Ragan , 320 F.2d at 817 (explaining that the plaintiff

“had not returned to civilian life and was not completely separate from the

military forces, but remained in military custody . . . and, being so confined, []

was made subject to military jurisdiction”); see also Lee v. Madigan , 248 F.2d

783 (9th Cir. 1957) (“The technical dishonorable discharge constituted a

severance from the military for certain purposes, including the deprivation of

various benefits, but it is unthinkable to regard it as a vitiation of all military

authority over the petitioner.”), rev’d on other grounds , 358 U.S. 228 (1959).

In Walden , the plaintiff was an inmate at the USDB who had been

convicted by court-martial for military crimes committed while on active duty.

See Walden , 840 F.2d at 772. He claimed that the manner in which the defendant

military officials conducted disciplinary proceedings pursuant to the court-martial

violated his due process rights. See id. These alleged due process violations

occurred before Walden’s discharge was officially executed. See id. This court

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concluded that the challenged disciplinary proceedings were “incident to service”:

At the time of [the] challenged proceedings, Walden was an active-
duty service member assigned to a military institution commanded
and operated by military personnel according to military policies and
regulations. He remained subject to the Uniform Code of Military
Justice and could be tried by court-martial for offenses while
incarcerated at the USDB. 10 U.S.C. § 802(a)(7). Walden’s
incarceration at the USDB is uniquely part of this military
relationship such that it is ‘incident’ to his military service as
established by Feres .

Id. at 774.

Here, Ricks stands in a position similar to that of the plaintiff in Walden .

Ricks was convicted in a military court for offenses committed during active

duty. At the time he suffered the alleged constitutional violations, Ricks was

confined in a military institution commanded and operated by military personnel,

subject to the USDB’s rules and regulations. Merely because Ricks was fully

discharged at the time of the alleged violations, unlike Walden, does not alter his

status as a military prisoner. As military prisoners, both Walden and Ricks were

subject to the UCMJ and could be tried by court-martial for offenses committed

during incarceration. See 10 U.S.C. § 802(a)(7). Ricks’ incarceration at the

USDB, and thus his alleged injuries, stemmed from his “military relationship

such that it is ‘incident’ to his military service.” Walden , 840 F.2d at 774.

We recognize that this court’s unpublished dispositions suggest that a

servicemember’s duty status affects this court’s Feres doctrine analysis. In

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Paalan v. Nickels , this court stated that “a person’s military duty status affects the

applicability of the Feres doctrine. The Feres doctrine does not bar recovery of

damages where the injured party was completely discharged from military service

prior to the injury.” No. 99-3283, 2000 WL 177416, **1 (10th Cir. Feb. 16,

2000) (citations omitted). Paalan, a military prisoner incarcerated at the USDB,

brought a Bivens action based on the denial of prescribed heart medication during

his confinement. See id. This court remanded the case for further proceedings to

determine whether Paalan’s injuries occurred after discharge. See id. Although

this court affirmed the district court’s dismissal of Paalan’s Bivens claim on

remand, it reiterated that “Feres is inapplicable . . . to injuries sustained after the

completion of an individual’s military service.” Paalan v. Nickels, No. 00-3367,

2001 WL 997938, at **1 (10th Cir. Aug. 31, 2001). 7

This court agrees that a person’s military status may affect the applicability

of the Feres doctrine. Nothing in the Supreme Court’s jurisprudence, however,

7
In support of this proposition, we cited United States v. Brown, 348 U.S.
110, 112-13 (1954). In Brown, the Supreme Court held that Feres did not bar a
discharged veteran’s FTCA claim arising from treatment received at a Veterans
Administration Hospital. See id. The Court emphasized, however, that “[t]he
injury for which suit was brought was not incurred while respondent was on
active duty or subject to military discipline.” Id. at 112 (emphasis added). It is
undisputed that Ricks was subject to military discipline at the time of the alleged
constitutional violations. We note that Brown, decided in 1954, was the last
Supreme Court case in which a plaintiff’s claims were not barred by the Feres
doctrine. In the nearly fifty years since Brown was decided, the Supreme Court
has consistently broadened the reach of the Feres doctrine. See Part III.B., supra.

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suggests that a person’s complete discharge creates a per se rule that Feres is

inapplicable. Indeed, the Supreme Court has cautioned that the Feres doctrine

“cannot be reduced to a few bright-line rules.” Shearer , 473 U.S. at 57; see also

Pringle , 208 F.3d at 1224. Moreover, as unpublished dispositions, the Paalan

orders and judgments are nonbinding dispositions. See 10th Cir. R. 36.3(A).

Thus, if a servicemember’s claims are incident to service, it is immaterial whether

the plaintiff has been fully discharged from the military.

Ricks argues that the military discipline rationale is not implicated in this

case because his claims “do[] not involve the ‘demands of discipline and duty

[that] becomes [ sic ] imperative in combat,’ which necessitates protecting the

special relationship between the enlisted military personnel and their superior

officers.” He argues that his status as a discharged military prisoner renders him

more like a federal prisoner than an active duty servicemember. In United States

v. Muniz , he notes, the Supreme Court permitted federal prisoners to bring FTCA

suits for injuries sustained during incarceration. See 374 U.S. 150, 158-59

(1963) (distinguishing Feres ).

Feres caselaw does not support Ricks’ contention. In rejecting a similar

argument in Stanley , the Supreme Court explained that “ Feres did not consider

the officer-subordinate relationship crucial, but established instead an ‘incident

to service’ test.” Stanley , 483 U.S. at 680-81. Moreover, it is clear that Feres

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applies to claims that arise outside of combat and military activities. In Shearer ,

for example, the decedent’s administratix brought an FTCA claim on behalf of

her son, who was off-duty and off-base when he was kidnaped and murdered by a

fellow servicemember. See Shearer , 473 U.S. at 53. The plaintiffs asserted that

the military negligently failed to exert control over the servicemember and failed

to warn others about his dangerousness. See id. at 58. As in Shearer , Ricks’

claims “go[] directly to the ‘management’ of the military; it calls into question

basic choices about the discipline, supervision, and control of a serviceman.” Id. ;

see also Pringle , 208 F.3d at 1227 (explaining that permitting the plaintiff’s

FTCA claims arising from the ejection from a military club would call into

question the military’s management of the club, the adequacy of security

measures, Army staffing decisions, and whether club regulations were followed

by club employees). The inquiry into military structure and command that

adjudication of Ricks’ claims would necessitate and its resulting effects are

precisely the sort that Feres intended to circumscribe. See Stanley , 483 U.S. at

682-83.

IV. CONCLUSION

This court concludes that Ricks’ complete discharge does not place him

beyond the ambit of the Feres doctrine. Because Ricks was incarcerated at a

military prison and subject to the UCMJ, the alleged constitutional violations

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were incident to his military service. Accordingly, the district court’s dismissal

of Ricks’ Bivens claims is AFFIRMED .

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