United States District Court, District of Columbia
[Dkt. ##10, 11, 14]
RICHARD J. LEON, United States District Judge
Plaintiff Rory Cavanaugh Wilson ("plaintiff) filed this action on April 15, 2013 against the United States Park Police, the Department of the Interior, four named Park Police Officers in their individual and official capacities, and two unnamed Park Police Officers in their individual and official capacities, seeking damages pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. ("FTCA"), and Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). See Complaint ("Compl.") at ¶¶ 3-4 [Dkt. #1]. Now before the Court are plaintiffs Motion for Default Judgment [Dkt. #10], defendants' Motion to Substitute the United States as the Party Defendant [Dkt. #11], and defendants' Motion for Partial Dismissal of Complaint [Dkt. #14]. Upon consideration of the parties' pleadings, the entire record in this case, and relevant law, the Court GRANTS defendants' Motion to Substitute the United States as the Party Defendant, GRANTS defendants' Motion for Partial Dismissal of Complaint, and DENIES plaintiffs Motion for Default Judgment as moot.
On June 1, 2011, plaintiff was sitting at the Navy Memorial in Washington, D.C., when U.S. Park Police Officers Hayes and Swope approached him and told him he needed to move along. See Compl. at ¶ 6. As plaintiff was leaving the area, the officers allegedly tackled him to the ground and handcuffed him. See Id . While handcuffed on the ground, plaintiff alleges that Park Police Officer Fennely shot him several times with his taser, causing plaintiffs body to go limp. See Id . The officers then arrested plaintiff and took him into custody. See Id . Plaintiffs collar bone was broken during the altercation. See id.
On April 15, 2013, plaintiff filed a two-count complaint alleging tortious conduct and violation of his civil rights, pursuant to the FTCA and Bivens, respectfully. See Compl. at ¶¶ 3-4. A summons was served on the Office of the United States Attorney on May 28, 2013. See May 28, 2013 Proof of Service at 1 [Dkt. #3]. On June 7, 2013, summonses for defendants Fennely, Hayes, Swope, and Chambers were served on "Captain Michael Libby, who is designated by law to accept service of process on behalf of [the] United States Park Police." See June 7, 2013 Proof of Service at 3-6 [Dkt. #3]. On November 12, 2013, case management orders were served on "Barbara Banks, Supervisor, Park Police Data, " for the four named defendants. See Nov. 12, 2013 Proof of Service [Dkt. #9].
I. Motion to Substitute United States as the Party Defendant
On January 29, 2014, defendants moved to substitute the United States as the party defendant for all FTCA claims brought against the named defendants in their individual capacities. See Motion to Substitute the United States as the Party Defendant at 1. Attached to defendants' motion was a certification by the Office of the United States Attorney for the District of Columbia-commonly referred to as a Westfall Certification-stating that defendants Hayes, Swope, Fennely, and Chambers were employees of the Government, and that they were acting within the scope of their employment at all times during the events that allegedly gave rise to plaintiffs claims. See Certification [Dkt. #11-1].
The FTCA is the "exclusive remedy for a tort committed by a federal official or employee within the scope of his employment." Ali v. Rumsfeld, 649 F.3d 762, 768 (D.C. Cir. 2011). The FTCA provides that:
The remedy against the United States ... for injury or loss of property, or personal injury or death arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment is exclusive of any other civil action or proceeding for money damages by reason of the same subject matter against the employee whose act or omission gave rise to the claim.
28 U.S.C. § 2679(b)(1). Government employees sued in their individual capacities for acts committed within the scope of their official duties are not proper defendants to any claim brought under the FTCA. See Harbury v. Hoyden, 522 F.3d 413, 416 (D.C. Cir. 2008) ("Under the FTCA, plaintiffs may sue the United States in federal court for state-law torts committed by government employees within the scope of their employment . . . [b]ut the FTCA does not create a statutory cause of action against individual government employees."); Void-El v. O'Brien, 811 F.Supp.2d 255, 259 (D.D.C. 2011).
Once a Westfall Certification is submitted, "any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States . . . and the United States shall be substituted as the party defendant." 28 U.S.C. § 2679(d)(1) (emphasis added). Such a certification has been made here. Accordingly, this Court must GRANT defendant's Motion to Substitute the United States as the Party Defendant as to plaintiffs claims brought under ...