MEMORANDUM AND ORDER Pro se plaintiff Oswald A. Lewis brought an action under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), alleging that federal law enforcement officials violated his constitutional rights by using excessive force and fabricating evidence. After defendants moved for summary judgment for all defendants on all claims, the Court granted the motion in part and denied it in part. The claims that remain to be tried are plaintiff’s claims that (i) Deputy Marshal Ryan Westfield used excessive force when he kicked plaintiff in the face after plaintiff had been subdued, and (ii) Deputy Marshals Christopher Bartosh, Brian Banks, Robert Ledogar, and Anthony Dineen failed to intervene to stop that force. The remaining defendants move to dismiss those claims under Federal Rule of Civil Procedure 12(h)(3) for lack of subject-matter jurisdiction. Defendants argue that there is no Bivens remedy for claims that federal officials used excessive force or failed to intervene against excessive force. Because that argument does not implicate subject-matter jurisdiction, defendants’ motion is denied. BACKGROUND A. Factual Background On August 26, 2014, in Queens, plaintiff Oswald A. Lewis was arrested by deputies from the United States Marshals Service (“USMS”). See Defs.’ Local Rule 56.1 Statement 7 (Dkt. #57-3) (“Defs.’ Statement”); Pls.’ Opp’n to Defs.’ Local Rule 56.1 Statement 7 (Dkt. #58-1) (“Pl.’s Statement”). The deputies included Deputy Marshals Ryan Westfield, Christopher Bartosh, Brian Banks, Robert Ledogar, and Anthony Dineen. See, e.g., Defs.’ Statement
37, 44. The deputies state that they were part of a fugitive arrest team that traced plaintiff to the Springfield Gardens section of Queens and then breached his residence. See id.
