United States District Court, D. Colorado
Brooke Jackson United States District Judge
Clark Bridges is an inmate in the Bureau of Prisons ADX
facility in Florence, Colorado. He filed this lawsuit on July
23, 2018, complaining that he was injured on February 28,
2018 when correctional officer [Frank] Berg intentionally
stomped on his shackled leg several times while executing a
cell extraction. ECF No. 1. Following various motions,
orders, and amendments, which I will not belabor here,
Bridges filed his Third Amended Complaint, now the operative
complaint, on April 8, 2019. ECF No. 61.
Third Amended Complaint names the United States, Frank Berg
and John Doe as defendants. The first claim asserts assault
and battery against Berg under the Federal Tort Claims Act.
Id. at 3-6. The second claim asserts that an
individual identified only as “Lieutenant John
Doe” failed to intervene and stop Berg from assaulting
him. In the header he characterizes this as a Bivens Eighth
Amendment claim. Id. at 7. Later, however, while he
seems to acknowledge that failure to intervene claims are
usually asserted in conjunction with an Eighth Amendment use
of excessive force claim, the circumstances here
“should qualify it to be in conjunction with the
assault (under supplemental jurisdiction) claim.”
same day that he filed his Third Amended Complaint, Bridges
filed a “Motion for Voluntary Dismissal, if (and only
if) I Cannot Proceed with Assault Claim.” ECF No. 62.
The only reason I raised excessive force is because my
assault claim was wrongfully struck. It would be silly for me
to take the Bivens claim over the assault & battery;
given the fact that a prisoner hasn't won money from a
Bivens in almost 40 years; plus, I exhausted admin. remedies
via SF-95 (for torts). If the Court continues to prevent me
from raising an assault claim, I request the Court to dismiss
this case (for it would prejudice my claims, otherwise).
Id. at 1.
referred the motion for voluntary dismissal to Magistrate
Judge Crews for a report and recommendation. ECF No. 63.
Defendant Berg then filed a motion to dismiss the second
claim to the extent it was asserted against him (it was not),
based on a claim of qualified immunity. ECF No. 64. I
referred that motion to Magistrate Judge Crews as well. ECF
Crews recommended that this Court determine that Mr. Bridges
can pursue an assault and battery tort claim against Officer
Berg under the law enforcement proviso exception to the
intentional torts exception under the FTCA, such that Mr.
Bridges may pursue his first claim. ECF No. 70 at 6-8. He
therefore recommended that Mr. Bridges' request for
voluntary dismissal of his Eighth Amendment claim, i.e., his
second claim, be granted. Id. at 8.
Bridges filed (twice) a timely objection to the
recommendation. ECF Nos. 72 and 73. Although he was happy
that Judge Crews recommended that his assault and battery
claim against Officer Berg could proceed, he objected to the
recommendation that his failure to intervene claim against
Lieutenant John Doe be dismissed (a recommendation that Judge
Crews did not make insofar as the second claim could be
construed as having been asserted under the FTCA). He
explains that in asking that his excessive force claim be
dismissed, he did not say anything about this failure to
intervene claim. Id.
United States and Berg then filed a response to the
objection. ECF No. 75. While claiming not to speak for the
unnamed John Doe defendant, they nevertheless argue that (1)
Mr. Bridges should not be permitted to change course and seek
to preserve a Bivens claim; (2) a Bivens
claim cannot be asserted against an unnamed defendant; and
(3) a judgment on a FTCA claim bars a Bivens claim
on the same conduct per 28 U.S.C. § 2676. Id.
at 3-4. Mr. Berg does not have standing to make these
arguments, as he is not subject of the second claim.
Crews reasonably construed Mr. Bridges' motion as
requesting dismissal of his excessive force claim if he could
pursue his assault and battery claim. I likewise construe it
that way. Accordingly, the second claim, to the extent it
asserted an excessive force claim arising under the Eighth
Amendment against anyone, will be dismissed.
other hand, neither Mr. Bridges nor the United States nor, of
course, the unnamed lieutenant, has provided any briefing as
to whether a failure to intervene claim may be brought
against a correctional officer under the FTCA. Minimal
research shows that there is law on that subject.
Compare, e.g., Carpenter v. Bragg, No.
8:15-cv-00574, 2015 WL 13734632, at **11-12 (D.S.C. Nov. 30,
2015) and Harper v. United States, No.3:12-cv-01292,
2014 WL 1746573, at *9 (M.D. Pa. Feb. 20, 2014) with
Weathington v. United States, No. 1:10-cv-00359, 2011 WL
12111509, at *13 (W.D. La. March 3, 2011) and Millbrook
v. United States, 8 F.Supp.3d 601, 617 (M.D.Pa. 2014).
Accordingly, this Court is not prepared at this time to
dismiss plaintiffs claim against Lt. John Doe under the FTCA.
Plaintiffs motion for voluntary dismissal, ECF No. 62, is
GRANTED IN PART AND DENIED IN PART. It is granted to the
extent that it seeks to preserve his assault and battery
claims under the FTCA against Officer Berg and Lt. John Doe,
and to dismiss his excessive force claims under the Eighth
Amendment. To any extent it could be interpreted to ...