The opinion of the court was delivered by: Reagan, District Judge
Plaintiff, a federal inmate currently confined at the the United States Penitentiary located in Florence, Colorado (USP-Florence), brings this action for deprivations of his constitutional rights pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) and the Federal Torts Claim Act (FTCA), 28 U.S.C. § 2671 et seq. Plaintiff seeks damages for injuries he allegedly received as a result of being beaten and battered by the prison guards. This case is now before the Court for a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A, which provides:
The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.
(b) Grounds for Dismissal
On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint--
(1) is frivolous, malicious, or fails to state a claim on which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from such relief.
28 U.S.C. § 1915A. An action or claim is frivolous if "it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). An action fails to state a claim upon which relief can be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007).
Briefly, Plaintiff alleges that on October 30, 2005, he was "viciously assaulted" by Defendants Reynolds and Thompson while he was handcuffed and shackled. Plaintiff states that this beating was witnessed by Defendants Samples, John Does 1 through 4, and Nurse Cruz - who allegedly failed to intervene and stop the unlawful beating. Plaintiff asserts that he suffered the following injuries as a result of this beating: (1) a broken left incisor tooth; (2) a torn left biceps muscle; and (3) a torn or ruptured left pectoral major muscle. Plaintiff claims the beating violated his rights under the Eighth Amendment. Liberally construing the complaint, Plaintiff seeks damages against the United States of America under the FTCA and against the individual defendants pursuant to Bivens.
The intentional use of excessive force by prison guards against an inmate without penological justification constitutes cruel and unusual punishment in violation of the Eighth Amendment and is actionable under Bivens. See Hudson v. McMillian, 503 U.S. 1, 6-7 (1992); DeWalt v. Carter, 224 F.3d 607, 619 (7th Cir. 2000). Assault or battery claims usually cannot be brought against the United States under the FTCA, except, however, such claims may be maintained against the United States for assaults or batteries committed by "investigative or law enforcement officers of the United States Government." See 28 U.S.C. § 2680(h). The Court assumes, without deciding, that the defendants (or most of them) are "law enforcement officers of the United States." Ali v. Federal Bureau of Prisons, 128 S.Ct. 831, 835-36 (2008) (holding that the phrase "other law enforcement officer" in 28 U.S.C. § 2680(c) includes Bureau of Prison officers who allegedly lost inmate's property).
Because a judgment against the United States in an FTCA action precludes recovery of a judgment against individual defendants in a Bivens action for the same acts or omissions, Plaintiff cannot receive a double recovery. See 28 U.S.C § 2679(b)(1); Arevalo v. Woods, 811 F.2d 487, 490 (9th Cir. 1987). Nevertheless, Plaintiff may maintain both an FTCA claim and a Bivens action in the same suit. Ting v. United States, 927 F.2d 1504, 1513 n.10 (9th Cir. 1991). Therefore, ...