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Barker v. McPherson

United States District Court, Southern District of Indiana, Terre Haute Division

May 4, 2015

STEVEN L. BARKER, Plaintiff,
v.
LT McPHERSON, et al., Defendants.

ENTRY FOLLOWING BENCH TRIAL

Hon. William T. Lawrence, Judge United States District Court Southern District of Indiana

A bench trial in the above-captioned cause was held on January 13, 2015. In lieu of final arguments, the parties submitted post-trial submissions on January 23, 2015. Dkt. Nos. 98-99. Pursuant to Federal Rule of Civil Procedure 52(a)(1), the Court now issues its findings of fact and conclusions of law.

I. BACKGROUND

A. Procedural History

On November 22, 2010, pro se Plaintiff Steven L. Barker filed suit alleging excessive force and related claims against the Bureau of Prisons (“BOP”), Lt. Lloyd McPherson, Lt. Eric Emmerich, Senior Officer Larry (“Fred”) Bobo, SIA Jaeger, and 100 anonymous correctional officers pursuant to Bivens v. Six Unkonw Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). In his complaint, Barker alleged, in part, that Lt. Emmerich used excessive force against him in violation of his Eight Amendment rights. Compl. at 11. He further alleged that Lt. McPherson, Officer Bobo, and SIA Jaeger falsified documents, committed assault and battery, conspired to cover up the incident with Lt. Emmerich, and/or were deliberately indifferent to Lt. Emmerich’s use of excessive force and Barker’s medical needs.

On November 16, 2011, the claims against the BOP and the 100 anonymous correctional officers were deemed “legally insufficient” and dismissed from the suit. Dkt. No. 13 at 1. Thereafter, the remaining Defendants filed a motion for summary judgment. On July 25, 2013, the Court granted in part and denied in part the Defendants’ motion, ruling as follows:

[T]he motion for summary judgment [Dkt. 31] is granted as to all claims asserted against Jaeger. The motion for summary judgment [Dkt. 31] is also granted as to the claims of falsifying documents, assault and battery, conspiracy, and deliberate indifference in delaying medical care asserted against Lt. McPherson and Officer Bobo.
The motion for summary judgment [Dkt. 31] is denied as to the claim of excessive force asserted against Lt. Emmerich and as to the claims of deliberate indifference for failure to intervene against Lt. McPherson and Officer Bobo.

Dkt. No. 50 at 10-11 (emphasis in original).

On September 18, 2013, the Court granted Barker’s motion to appoint counsel, and on October 4, 2013, the Court appointed volunteer counsel, John Andrew Goodridge. Thereafter, Barker was permitted to file an amended complaint and did so on July 1, 2014. The amended complaint contained the following claims against the following parties:

Count I Violation of constitutional rights for the use of excessive force and/or failing to intervene against the United States, Lt. Emmerich, Lt. McPherson, and Officer Bobo
Count II Assault and battery against the United States and Lt. Emmerich
Count III Violation of constitutional rights for deliberate indifference to Barker’s medical needs against the United States, Lt. Emmerich, Lt. McPherson, and Officer Bobo
Count IV Gross negligence against the United States, Lt. Emmerich, Lt. McPherson, and Officer Bobo
Count V Intentional infliction of emotional distress against the United States, Lt. Emmerich, Lt. McPherson, and Officer Bobo

Thereafter, the Defendants moved to dismiss several of Barker’s claims, and on October 9, 2014, the Court granted the motion. The following claims remained for trial.

Count I Violation of constitutional rights for the use of excessive force and/or failing to intervene against Lt. Emmerich, Lt. McPherson, and Officer Bobo
Count II Assault and battery against the United States
Count IV Gross negligence against the United States (in relation to the excessive force and deliberate indifference of Lt. Emmerich, Lt. McPherson, and Officer Bobo)
Count V Intentional infliction of emotional distress against the United States

On the morning of trial, [1] Barker orally moved to dismiss his failure to intervene claims against Lt. McPherson and Officer Bobo, and the related gross negligence claims against the United States. The Court GRANTED Barker’s motion, and the trial proceeded as to Barker’s excessive force claim against Lt. Emmerich and the related assault and battery, gross negligence, and intentional infliction of emotional distress claims against the United States.

B. Trial Testimony

The following is a summary of the testimony given at trial.

1. Barker

On the evening of March 11, 2009, Barker was removed from his cell in the Federal Correctional Complex in Terre Haute, Indiana (“FCC Terre Haute”) and questioned regarding an assault on another inmate, Steven Marsh. Apparently, Marsh is a convicted child molester. After Barker refused to speak with Lt. Emmerich about the assault on Marsh in the TV room outside his cell, he was summoned to the Lieutenant’s office for further questioning. At that point, Barker knew that he was being sent to the Segregated Housing Unit (the “SHU”) in the prison while the staff investigated whether he assaulted Marsh. After Lt. Emmerich finished the transfer paperwork, Officer Bobo was called to escort Barker to the SHU.

Once Officer Bobo arrived, he handcuffed Barker behind his back. Barker then asked Officer Bobo if he could have his glasses from his cell. Before Officer Bobo could answer, Lt. Emmerich said “fuck you, you ain’t got nothing coming.” Barker responded by saying, among other things, “fuck you, too. . . . I don’t know why you so screwed up about a child molester.” Apparently angered by Barker’s words, Lt. Emmerich assaulted Barker. He slammed Barker’s head into a wall of metal mailboxes a number of times, slammed his head into a steel cage on the opposite side of the office, slammed his head into a nearby refrigerator, slammed him onto the floor, picked him back up, rammed him into the mailboxes again, and then slammed him to the floor one last time. With the final slam to the floor, Lt. Emmerich pushed his knee against Barker’s ribs with so much force that Barker defecated on himself. After seeing what Barker described as a pool of blood on the floor, Lt. Emmerich eased off ...


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