Bowling v. U.S.

• Decision Date: 17 September 2010
• Docket Number: Case No. 04-2320-JAR
• Citation: 740 F.Supp.2d 1240
• Parties: Barron R. BOWLING, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Kansas

740 F.Supp.2d 1240

Barron R. BOWLING, Plaintiff,

v.UNITED STATES of America, Defendant.

Case No. 04-2320-JAR.

United States District Court,

D. Kansas.

Sept. 17, 2010.

Cheryl A. Pilate, Patrick M. Lewis, Morgan Pilate LLC, Olathe, KS, for Plaintiff.

D. Brad Bailey, Thomas G. Luedke, Office of United States Attorney, Topeka, KS, Jay Douglas Befort, Office of United States Trustee, Wichita, KS, for Defendant.

MEMORANDUM AND ORDER

JULIE A. ROBINSON, District Judge.

This is a case that began with road rage fueled by egos and unwarranted self-righteousness, and aggravated by disguised identity. A Drug Enforcement Administration Agent ("DEA agent"), acting in an undercover capacity—but with the authoritative sentiments and expectations of an on-duty, uniformed law enforcement officer in a marked police vehicle—commits a traffic offense, expects an unwitting but equally self-righteous civilian motorist to yield, and then explodes with rage after the ensuing collision and damage to his government-owned vehicle. The Court heard nineteen days of testimony, from law enforcement officers, eyewitnesses to the events transpiring after the collision, as well as from expert witnesses on excessive force, the likely cause of the collision, and the consequential medical and psychological damages suffered by plaintiff. Asthe trier of fact, this Court listened intently to the often conflicting testimony and considered the many means by which each party sought to impeach adverse witnesses. This Court, perhaps as importantly, watched intensely the manner and demeanor of the witnesses who testified. Just as this Court routinely instructs jurors in cases in which they routinely determine issues of credibility, this Court evaluated the testimony of the witnesses, as well as all other evidence in this light. ¹

Ultimately, this Court concludes that the preponderance of the evidence establishes that DEA Special Agent Timothy McCue assaulted and battered plaintiff Barron Bowling, and used excessive force in arresting and taking plaintiff into custody; and that DEA Special Agent Brendan Fitzpatrick and federally-deputized DEA Task Force Officer Brandon Collins did not stop McCue from committing assault, battery and using excessive force. This Court further concludes that plaintiff sustained a closed head injury, a concussion and has since, as a proximate result, suffered from post-concussion syndrome, which presents with a panoply of symptoms ranging from the annoying and aggravating to the impairing. The Court thus grants judgment on plaintiff's claims of assault, battery and excessive force, and orders damages in the total amount of $833,250.

Plaintiff had three other theories or claims for relief in this action brought against defendant under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq. The Court grants defendant's motion to dismiss these three other claims on jurisdictional grounds. In Part I of this Memorandum and Order, the Court addresses defendant's motion to dismiss these three claims. In Part II of this Memorandum and Order, the Court makes findings of fact and conclusions of law on the sole remaining claims under the FTCA for assault, battery and excessive force, and grants judgment to plaintiff on these claims.

PART I. Motion to Dismiss Claims

Plaintiff Barron Bowling brought this action against the United States, under the FTCA, and against the Unified Government of Wyandotte County Kansas and certain law enforcement officers of the Kansas City, Kansas Police Department, an arm of the Unified Government, under 42 U.S.C. § 1983. The claims against theUnified Government and its police officers were dismissed prior to trial.

As set forth in the Pretrial Order, the remaining claims at the time of trial were claims against the United States for assault, battery, excessive force and civil conspiracy. Specifically, the four remaining claims were: (1) DEA Special Agent McCue, DEA Special Agent Fitzpatrick, or DEA Task Force Officer Collins used excessive and unreasonable force on, assaulted, or battered plaintiff in the course of arresting him or after his arrest; (2) McCue, Fitzpatrick and Collins, or any two of them, engaged in a civil conspiracy to use excessive and unreasonable force on, to assault, or to batter plaintiff in the course of arresting him or after his arrest; (3) McCue, Fitzpatrick, and Collins, or any two of them, engaged in a civil conspiracy among themselves to subject plaintiff to malicious prosecution on the charge of criminal damage to property; or (4) McCue, Fitzpatrick, or Collins engaged in a civil conspiracy with Steven Culp, Dennis Ware or Robert Lane, who were Kansas City, Kansas police officers, to subject plaintiff to malicious prosecution on the charge of criminal damage to property.

This case was presented in a highly unusual procedural posture at trial. Defendant filed no dispositive motions prior to trial; the parties represented to the Court that as part of settlement negotiations, the defendant agreed not to file any dispositive motions. Only after a nineteen-day bench trial, defendant has moved to dismiss, on jurisdictional and other grounds, three of the four claims brought by plaintiff. Because federal courts are courts of limited jurisdiction, a party may question the Court's subject matter jurisdiction at any time, including on appeal.² Defendant raised these arguments for the first time during trial. Needless to say, had defendant filed its motion for dismissal or summary judgment on these claims, the parties would not have expended so much time and money in trial. Apparently, the parties were willing to bear the burden of time and expense in trying claims that might ultimately be dismissed, without any regard for the burden this placed on the Court's time and schedule.

Thus this matter now comes before the Court on Defendant United States of America's Motion to Dismiss All of Plaintiff's Claims Except Assault Based on Lack of Subject Matter Jurisdiction, and Motion for Judgment as a Matter of Law Based on Plaintiff's Failure to Satisfy His Burden of Proof on Various Claims with Memorandum in Support Included (Doc. 386). The Court directed the parties to brief the issues raised in defendant's motion to dismiss. The matter is now fully briefed and the Court is prepared to rule. For the reasons set forth in detail in Part I of the Memorandum and Order, defendant's motion to dismiss is granted in part and denied in part. The Court dismisses the conspiracy claims, but does not dismiss the claims of assault, battery and excessive force. In Part II of this Memorandum and Order, the Court sets forth its findings of fact and conclusions of law, in denying defendant's motion for judgment and in granting plaintiff judgment on his claims of assault, battery and excessive force, under the FTCA.

One of the express purposes of the Pretrial Order is to "obtain[ ] admissions and stipulations about facts and documents to avoid unnecessary proof." ³ The parties have stipulated that, at all times relevant to these claims, McCue, Fitzpatrick, and Collins (the "three federal agents") were acting under color of federal authority and within the scope of their employment as either a DEA special agent or a deputized task force officer.⁴ To the extent the parties continue to dispute the exact claims in this case—whether plaintiff is asserting claims for aiding and abetting or abuse of process—any claims not preserved in the Pretrial Order will not be addressed by this Court. Furthermore, the FTCA does not recognize claims for violation of federal or constitutional law.⁵

In its motion, defendant argues that this Court lacks subject matter jurisdiction over certain claims, in that plaintiff failed to exhaust his administrative remedies on all claims except assault, and because Kansas law does not recognize a conspiracy claim against a governmental entity based on the actions of its employees while acting within the scope of their employment. Because such claims are not recognized under state law, defendant argues that the FTCA does not accord a waiver of sovereign immunity allowing such claims to be brought against the United States.

A. Administrative Exhaustion

"The FTCA waives the federal government's sovereign immunity to suits for money damages arising out of the negligence of government agents." ⁶ As a precondition to bringing an action against the United States in federal court, the FTCA requires a claimant to exhaust administrative remedies. ⁷ "The exhaustion of the administrative claim process is a jurisdictional prerequisite to a FTCA action." ⁸ Because the requirement is jurisdictional, it cannot be waived.⁹ To satisfy the exhaustion requirement, per 28 U.S.C. § 2675(a), a claimant must file an administrative claim with the appropriate federal agency that includes "(1) a written statement sufficiently describing the injury to enable the agency to begin its own investigation, and (2) a sum certain damages claim." ¹⁰ "The FTCA's exhaustion requirement is intended to provide notice to the agency so that it can conduct its own investigation of the claim. It also serves to ease court congestion and avoid unnecessary litigation." ¹¹ Because the notice requirement is jurisdictional, it is to be construed strictly, ¹² but "should not be interpreted inflexibly." ¹³

Under federal regulations, "a claim shall be deemed to have been presented when a Federal agency receives from a claimant, ... an executed Standard Form 95 or other written notification of an incident, accompanied by a claim for money damages ..." ¹⁴ An administrative claim must give "notice of the facts and circumstances underlying a claim rather than the exact grounds upon which plaintiff seeks to hold the government liable." ¹⁵

In determining what level of specificity satisfies § 2675(a), the Tenth Circuit adopted the "pragmatic approach," "requiring only that the administrative claim contain sufficient facts to enable the agency to begin...