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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

BOBBIE BOLTON,

Plaintiff,

v. CASE NO. 4:03cv307-RH/WCS

UNITED STATES OF AMERICA and

CORRECTIONS OFFICER JEFFREY LINTON,

Defendant.

__________________________________________/

ORDER ON MOTIONS FOR SUMMARY JUDGMENT

Plaintiff Bobbi Bolton, an inmate in the Bureau of Prisons, asserts that

defendant Jeffrey Linton, a correctional officer, coerced her into having sex with

him by threats of adverse official action. In this action, Ms. Bolton seeks recovery

against Mr. Linton individually (asserting a constitutional tort) and against the

United States under the Federal Tort Claims Act (asserting battery by Mr. Linton

and negligence of other federal employees in the hiring, training, supervision, and

retention of Mr. Linton). Mr. Linton admits having sex with Ms. Bolton but

asserts it was consensual. 

Mr. Linton has moved for summary judgment on the ground that Ms. Bolton
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Case No: 4:03cv307-RH/WCS

did not exhaust her administrative remedies as required by the Prison Litigation

Reform Act. I conclude that Ms. Bolton did exhaust her administrative remedies

and thus deny the motion.

The government has moved for summary judgment on the ground that Mr.

Linton was not acting within the scope of his employment, thus rendering the

government not liable for any battery, and that there was no negligence in hiring,

training, supervising, or retaining Mr. Linton. I conclude that the government may

be liable for Mr. Linton’s conduct even though he was acting outside the scope of

his employment, and that there are disputed factual issues with respect to negligent

supervision or retention. I thus deny the government’s motion for summary

judgment on the claims of battery and negligent supervision or retention. I also

conclude, however, that Ms. Bolton has presented no evidence that would support

a finding of negligent hiring or training, and I thus grant the motion for summary

judgment with respect to those claims.

I

Exhaustion

As all parties agree, Ms. Bolton was required under the Prison Litigation

Reform Act to exhaust all available administrative remedies prior to commencing

this action. See 42 U.S.C. §1997e. The sole ground on which Mr. Linton seeks
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1

 The Bureau not only sought and obtained Mr. Linton’s resignation, but it

also referred the matter to the Federal Bureau of Investigation for possible criminal

prosecution. In due course, Mr. Linton was charged with and pled guilty to the

misdemeanor offense of having sex with an inmate in his custody. See 18 U.S.C.

§2243(b).

Case No: 4:03cv307-RH/WCS

summary judgment is that Ms. Bolton failed to do so. But that is not correct. 

The Bureau of Prisons has a four-stage “Administrative Remedy Program.”

28 C.F.R. Pt. 542, Subpt. B. First, an inmate must attempt “informal resolution.” 

28 C.F.R. §542.13(a). If that fails, an inmate must submit “a formal written

Administrative Remedy Request.” 28 C.F.R. §542.14(a). An inmate “who is not

satisfied with the Warden’s response” to such a formal request may submit an

appeal to the appropriate Regional Director. 28 C.F.R. §542.15(a). An inmate

“who is not satisfied with the Regional Director’s response” may submit an appeal

to the General Counsel. Id.

In the case at bar, Ms. Bolton properly sought “informal resolution” by

orally complaining of Mr. Linton’s conduct by not later than August 7, 2002. 

Prison authorities promptly confronted Mr. Linton, and he resigned. Ms. Bolton

thus achieved the full measure of relief that was available within the administrative

process: the condition at issue (exposure to sexual hostility) was remedied.1

 Ms.

Bolton did not seek review by the warden by submitting “a formal written

Administrative Remedy Request,” nor did she appeal to the regional director or

general counsel.
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2

 Asked why a prisoner who wins at the informal stage should pursue the

issue to the warden, regional director, and general counsel, Mr. Linton’s attorney’s

only response was because that is what the law requires. But it does not.

Case No: 4:03cv307-RH/WCS

Mr. Linton does not contest the adequacy of Ms. Bolton’s exhaustion of the

“informal resolution” remedy. Mr. Linton asserts, however, that Ms. Bolton was

obligated to pursue the additional steps in the administrative process, formally

appealing to the warden, regional director, and general counsel, in turn. Mr. Linton

makes this assertion even though, as he admits, Ms. Bolton had achieved at the

informal resolution stage all the relief that was available within the administrative

process. 

Mr. Linton’s assertion makes no sense. An appeal of a successful result is

required by neither the express terms of the Administrative Remedy Program nor

by the Prison Litigation Reform Act.2

 To the contrary, the Administrative Remedy

Program is explicitly designed to resolve a prisoner’s complaint at the informal

stage if possible; this is the entire point of the requirement that a prisoner attempt

informal resolution. That is precisely what occurred here. And nothing in the

Prison Litigation Reform Act requires a prisoner to pursue administrative remedies

beyond the point of complete success.

Mr. Linton has cited no case in which an inmate prevailed at one stage of the

administrative process but was required to pursue an appeal. Nor does he cite any

authority suggesting such an appeal would be available, even if a prisoner sought
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Case No: 4:03cv307-RH/WCS

to pursue one. When a prisoner wins in the administrative process, he or she need

not continue to appeal the favorable ruling. 

It is true, of course, that Mr. Linton did not recover damages in the

administrative process; damages are not an available administrative remedy in the

Bureau of Prisons. As Mr. Linton notes, a prisoner must exhaust any available

administrative remedies even if she seeks an award of damages. See, e.g., Booth v.

Churner, 532 U.S. 731, 121 S. Ct. 1819, 149 L. Ed. 2d 958 (2001). But a prisoner

who has exhausted administrative remedies—as Ms. Bolton has done—need not

appeal a favorable administrative ruling, just because she also seeks an award of

damages. The Bureau’s own regulations make clear that, when Ms. Bolton reached

the point at which she had prevailed and had recovered all available relief other

than an award of damages, the appropriate next step was not further pursuit of the

administrative process, but instead a reference to the statutory procedures leading

to the filing of a lawsuit such as the case at bar:

If an inmate raises an issue in a request or appeal that cannot be

resolved through the Administrative Remedy Program, the Bureau

will refer the inmate to the appropriate statutorily-mandated

procedure.

28 C.F.R. §542.10(c). Ms. Bolton followed the “appropriate statutorily-mandated
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3

 Neither Mr. Linton nor the government challenges the adequacy of Ms.

Bolton’s compliance with the pre-suit requirements of the Federal Tort Claims Act.

Case No: 4:03cv307-RH/WCS

procedure” by filing a claim as required by the Federal Tort Claims Act.3

In sum, Ms. Bolton fully and properly exhausted her remedies under the

Bureau of Prisons Administrative Remedy Program when she sought and achieved

informal resolution, thus obviating the need for (and rendering improper) any

further appeal within the administrative process. Mr. Linton’s motion for summary

judgment based on failure to exhaust administrative remedies will be denied.

II

Negligence

Ms. Bolton asserts claims under the Federal Tort Claims Act for negligent

hiring, training, supervision, and retention of Mr. Linton. The government seeks

summary judgment on these claims on the ground that the Ms. Bolton has

presented no evidence that would support a finding of such negligence.

With respect to hiring and training, the government is correct. Ms. Bolton

has presented no evidence that, with reasonable care, a hiring authority would have

found any reason to doubt Mr. Linton’s fitness to serve in a correctional facility. 

Nor has Ms. Bolton presented any evidence of negligent training. To the contrary,

Mr. Linton’s extensive training included clear instructions not to engage in sex

with inmates. Ms. Bolton has presented no evidence that better training could have
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been provided or would have made any difference.

With respect to supervision and retention, however, the result is different. 

Ms. Bolton has presented evidence that, when viewed with all inferences in her

favor as required for summary judgment purposes, would support a finding that

Captain Ron Horton knew Ms. Bolton was at risk of an attack by Mr. Linton but

failed to act. The evidence includes testimony of Mr. Horton that he was told Mr.

Linton was “dirty,” testimony of Mary Lee Faison that she told Mr. Horton that

Mr. Linton was ogling Ms. Bolton, and testimony of Ashley Turner that she heard

Mr. Horton himself say he had been told about Mr. Linton’s conduct but failed to

act. 

The government acknowledges that Ms. Turner’s testimony, if admissible,

would be sufficient to defeat summary judgment on this claim, but the government

asserts her testimony in inadmissible hearsay. I disagree. Ms. Turner was

(according to the declaration) an eye witness to Mr. Horton’s statement, and Mr.

Horton’s statement is admissible as a party admission under Federal Rule of

Evidence 801(d)(2)(D). See, e.g., Wilkinson v. Carnival Cruise Lines, Inc., 920

F.2d 1560, 1565 (11th Cir. 1991) (concluding that admissibility of employee’s

statement under Rule 801(d)(2)(D) turns not on employee’s “speaking authority”

but rather on whether the statement concerned a “matter within the scope of [his]

agency or employment”). As chief correctional officer, Mr. Horton’s duties
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included supervising subordinate officers and dealing with inmate security matters;

in his deposition, Mr. Horton seemingly acknowledged as much. Fielding reports

of correctional officer abuse of prisoners was within the scope of Mr. Horton’s

employment.

The government’s motion for summary judgment will be granted with

respect to negligent hiring and training and denied with respect to negligent

supervision and retention.

III

Battery

Ms. Bolton also seeks recovery against the United States for the intentional

tort of battery that she says was committed by Mr. Linton. The Federal Tort

Claims Act does not allow recovery for intentional torts committed by most

government employees, but there is an exception to that rule for law enforcement

officers. By the proviso in 28 U.S.C. §2680(h), the United States has specifically

accepted liability for certain intentional torts, including battery, if committed by

“law enforcement officers of the United States Government.” 

The government admits that Mr. Linton was such an officer. The

government asserts, however, that he was not acting within the scope of his

employment when he had sex with Ms. Bolton. That is correct. See, e.g.,
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Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 756-57, 118 S. Ct. 2257, 141

L. Ed. 2d 633 (1998) (holding that supervisory employee was not acting within

scope of employment in seeking sex from subordinate employee). 

Mr. Linton was, however, acting under color of law. His entire relationship

with Ms. Bolton was as a correctional officer, and, according to Ms. Bolton, he

threatened to take official action against her—sending her to the special housing

unit and affecting her release date—unless she submitted to his sexual demands.

Congress intended the proviso in §2680(h) to apply to acts of law

enforcement officers “within the scope of their employment, or under color of

Federal law.” S. Rep. No. 93-588 (1973), reprinted in 1974 U.S.C.C.A.N. 2789,

2791 (emphasis added). This reading of the proviso is fully consistent with 28

U.S.C. §2674, which renders the government liable “in the same manner and to the

same extent as a private individual under like circumstances.” A private individual

whose employee wields the employer’s authority may, in appropriate

circumstances, be held liable therefor, even if outside the scope of employment. 

See Ellerth, 524 U.S. at 758 (“Scope of employment does not define the only basis

for employer liability under agency principles”); id. at 760-65 (setting forth

standards under which employer may be held liable for acts of supervisory

employee who threatens adverse action if sexual advances are rebuffed). 

Nothing in the Federal Tort Claims Act bars liability for acts of a law
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enforcement officer that would be attributed to the employer under standard

agency principles. It is true, as the government notes, that the Federal Tort Claims

Act jurisdictional provision, 28 U.S.C. §1346(b)(1), explicitly refers to scope of

employment. But that reference is immediately followed by the “private

individual” rule that matches the substantive standard set forth in §2674. Thus

§1346(b)(1) provides federal jurisdiction of civil actions on claims against the

United States for injury or loss 

caused by the negligent or wrongful act or omission of any employee

of the Government while acting within the scope of his office or

employment, under circumstances where the United States, if a

private person, would be liable to the claimant in accordance with the

law of the place where the act or omission occurred.

 28 U.S.C. §1346(b)(1) (emphasis added). Among the circumstances in which a

private person would be liable are those referred to in Ellerth.

The proviso in §2680(h) was enacted in large measure based on Congress’s

disgust with abuses by federal law enforcement officers in undertaking lawless no

knock entries of homes without warrants or probable cause. See S. Rep. No. 93-

588, 1974 U.S.C.C.A.N. 2789, 2790. Congress would not likely have been less

disgusted at the prospect of a federal correctional officer coercing an inmate to

submit to unwanted sex. Whether that is what happened in the case at bar is

disputed. Whether, when the facts are known, these will turn out to be
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circumstances in which a private employer would be liable is unclear. But the

government is not entitled to summary judgment. 

Conclusion

For these reasons, 

IT IS ORDERED:

1. Defendant Linton’s motion for summary judgment (document 49) is

DENIED.

2. Defendant United States’ motion for summary judgment (document 51) is

GRANTED IN PART and DENIED IN PART. The motion is granted with respect

to claims of negligent hiring or training, and those claims are therefore dismissed

with prejudice. The motion is denied with respect to claims of negligent

supervision or retention and battery. I do not direct the entry of judgment pursuant

to Federal Rule of Civil Procedure 54(b). 

SO ORDERED this 22d day of November, 2004.

s/Robert L. Hinkle 

Chief United States District Judge