Adams v. United States
ORDER overruling 5 Motion Pursuant to Fed. R. Civ. P. 54(b) and 636(A) by Judge Lewis T. Babcock on 1/13/16.(dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02629-GPG
ORDER OVERRULING OBJECTION
On December 30, 2015, Plaintiff, Eric Adams, filed pro se a “Motion Pursuant to
Fed. R. Civ. P. 54(b) and 636(A).” (ECF No. 5). In the motion, Mr. Adams objects to the
December 3, 2015 Order by Magistrate Judge Gordon P. Gallagher directing him to file
an Amended Complaint. Specifically, Mr. Adams challenges Magistrate Judge
Gallagher’s directive that his action is more properly raised under 28 U.S.C.§ 1331 and
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971), as opposed to the FTCA.
The Court will construe the Motion liberally as an Objection filed pursuant to 28
U.S.C. § 636(b)(1)(A). Under § 636(b)(1)(A), a judge may reconsider any pretrial matter
designated to a magistrate judge to hear and determine where it has been shown that
the magistrate judge’s order is clearly erroneous or contrary to law.
Upon review of Mr. Adams’ Complaint and the December 3 Order, I find no basis
for his arguments. Magistrate Judge Gallagher’s December 3 Order neither is clearly
erroneous nor contrary to law. Furthermore, Mr. Adams’ previous suit, based on some
of the same events as the current case, Adams v. United States, 12-cv-01076, resulted
in Magistrate Judge Boland also directing him that his action was more properly raised
pursuant to Bivens. See id., at ECF No. 8. Mr. Adams objected to Magistrate Judge
Boland’s order in that case as well. Id., ECF No. 9. His objections were overruled. Id.,
ECF No. 10.
Mr. Adams may have misinterpreted Magistrate Judge Gallagher’s December 3
Order. In some circumstances, a federal prisoner may be able to choose whether to
pursue his claim under the FTCA or Bivens. As the Tenth Circuit explained: "When a
federal law enforcement officer commits an intentional tort, the victim has two avenues
of redress: 1) he may bring a Bivens claim against the individual officer based on the
constitutional violation, or 2) he may bring a common law tort action against the United
States pursuant to the FTCA." Engle v. Mecke, 24 F.3d 133, 135 (10th Cir.1994)
(citations omitted). However, the FTCA and a Bivens claim are alternative remedies.
See Robbins v. Wilke, 300 F.3d 1208, 1213 (10th Cir. 2002); Engle, 24 F.3d at 135
(judgment against the United States under the FTCA precludes recovery against the
federal employee under Bivens). If Mr. Adams believes his claim should be pursued
under the FTCA, he should base his claim on a common law tort.
Mr. Adams’ liberally construed Objection, therefore, will be overruled. Mr. Adams
is instructed to comply with the December 3 Order or the action will be dismissed for
failure to prosecute. Accordingly, it is
ORDERED that Mr. Adams’ Motion Pursuant to Fed. R. Civ. P. 54(b) and 636(A)
(ECF No. 5) filed on December 30, 2015, is construed liberally as an Objection filed
pursuant to 28 U.S.C. § 636(b)(1)(A) and is overruled. It is
FURTHER ORDERED that Mr. Adams has twenty-one days from the date of
this Order to comply with the December 3, 2015 Order. It is
FURTHER ORDERED that if Mr. Adams fails to comply with the December 3,
2015 Order, as directed, the action will be dismissed without further notice.
DATED at Denver, Colorado, this
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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