Barbera v. Smith

Decision Date09 February 1987
Docket NumberNo. 84 Civ. 8624 (SWK).,84 Civ. 8624 (SWK).
Citation654 F. Supp. 386
PartiesJacqueline BARBERA, as Administratrix of the Goods, Chattels, and Credits of Lena Margaret Barbera, Plaintiff, v. William French SMITH, individually and as Attorney General for the United States; John S. Martin, Jr., individually and as the former United States Attorney for the Southern District of New York; and Stephen Schlessinger, individually and as a former Assistant United States Attorney for the Southern District of New York, Defendants.
CourtU.S. District Court — Southern District of New York


William M. Kunstler, Ronald L. Kuby, New York City, for plaintiff.

Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., by Peter C. Salerno, Asst. U.S. Atty., New York City, for defendants.


KRAM, District Judge.

This is an action brought under the Federal Tort Claims Act (the "FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680, and as a Bivens claim under the Fifth Amendment to the United States Constitution pursuant to general federal question jurisdiction, 28 U.S.C. § 1331. This case is presently before the Court on defendants' motion to dismiss for lack of personal jurisdiction over one of the defendants, for failure to state a claim upon which relief can be granted, for lack of subject matter jurisdiction, and on the grounds of absolute and qualified immunity pursuant to Rules 12(b)(1), (2) and (6) of the Federal Rules of Civil Procedure, or, in the alternative, for summary judgment pursuant to Rule 56. For the reasons set forth below, defendants' motion is granted in part and denied in part.


This action arises out of the April 1982 murders of Lena Margaret Barbera ("Barbera") and three CBS employees who had come to her aid in a rooftop parking area at Pier 92 in Manhattan.

Barbera was employed as an accountant by the Candor Diamond Corporation ("Candor"). Candor, its employees and former President, Irwin E. Margolies ("Margolies"), were the targets of a fraud investigation conducted by the United States Attorney for the Southern District of New York, defendant John R. Martin ("Martin"), in 1981 and 1982. The Assistant United States Attorney ("AUSA") assigned to the investigation was defendant Stephen Schlessinger ("Schlessinger").

Barbera agreed to cooperate in the government's investigation of Candor sometime in 1981. As part of her cooperation agreement, Barbera pleaded guilty to a single count mail fraud information under 18 U.S.C. § 1341. Barbera's arrest and sentencing were deferred by the court at Schlessinger's request because of Barbera's cooperation with the government. Schlessinger promised to recommend a non-custodial sentence as part of the agreement.

Plaintiff, Barbera's administratrix and mother, alleges that, after Barbera began cooperating with the government, her attorney asked Schlessinger to provide Barbera with police protection and Schlessinger refused; that Schlessinger informed Margolies' attorney who, in turn, informed Margolies in December 1981 that two Candor employees, one of whom was Barbera, were cooperating with the government; and that immediately thereafter Margolies hired Donald P. Nash ("Nash") to kill Barbera and Jenny Soo Chin ("Chin"), a coworker and close friend of Barbera, who Margolies wrongly assumed to be the other Candor informant.1

In January 1982, Chin disappeared. Plaintiff alleges that, following Chin's disappearance, Barbera again asked Schlessinger for police protection and was again refused.

Barbera was murdered on April 12, 1982. Nash and Margolies subsequently were convicted of the murders of both Chin and Barbera in New York State Supreme Court in April 1983 and May 1984 respectively.

This action was filed in the United States District Court for the Eastern District of New York on July 30, 1984, against William French Smith ("Smith"), the former United States Attorney General, Martin, and Schlessinger, in both their individual and their official capacities. That court transferred this action to the Southern District of New York as the proper place of venue by consent of all parties on November 16, 1984.

Plaintiff alleges that defendant Schlessinger's negligence in informing Margolies' attorney of Barbera's cooperation and in refusing Barbera's requests for police protection and that defendants Martin's and Smith's negligent control and supervision of Schlessinger were the proximate cause of Barbera's death. Plaintiff alleges that, as a result of defendants' negligence, defendants and the government are subject to tort liability under both the FTCA and Bivens because defendants deprived Barbera of her Fifth Amendment right to life without due process of the law.

The Claims
A. The FTCA Claim

The FTCA waives the sovereign immunity of the United States under certain specified conditions and must be complied with strictly. See United States v. Kubrick, 444 U.S. 111, 117-18, 100 S.Ct. 352, 356-57, 62 L.Ed.2d 259 (1979). The FTCA provides in pertinent part that

An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the government acting within the scope of his office or employment unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail.

28 U.S.C. § 2675(a).

Suit under the FTCA lies only against the United States, and the district courts lack subject matter jurisdiction over claims asserted against either federal agencies or individual federal employees. Myers & Myers, Inc. v. United States Postal Service, 527 F.2d 1252, 1256 (2d Cir. 1975). An additional jurisdictional prerequisite to suit under the FTCA is that an administrative claim be filed with the appropriate federal agency before commencement of the district court action. O'Rourke v. Eastern Airlines, Inc., 730 F.2d 842, 855 (2d Cir.1984).

Plaintiff has neither sued the United States nor filed an administrative claim prior to commencement of her action. As a result, plaintiff's FTCA claim must be dismissed pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction.

B. The Bivens Claim

Plaintiff brings this action on behalf of Barbera, her deceased daughter, alleging that the negligent and reckless acts of the defendants deprived Barbera of her constitutional right to life without due process of the law in violation of the Fifth Amendment to the United States Constitution. Asserting federal question jurisdiction under 28 U.S.C. § 1331(a), plaintiff seeks compensatory and punitive damages against the defendants for their alleged constitutional violations under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Bivens established that victims of a constitutional violation by a federal agent acting under color of federal law have a right to recover damages against that official in federal court. See Carlson v. Green, 446 U.S. 14, 18, 100 S.Ct. 1468, 1471, 64 L.Ed.2d 15 (1980).2

It is not disputed that defendants were federal agents who were acting under color of federal law during the conduct complained of. The issue which this Court is called on to decide is whether this conduct deprived the plaintiff of a right, privilege, or immunity secured by the Constitution.3

Fifth Amendment guarantees include, among others, that a person will not be deprived of life without due process of law. However, plaintiff can prove no deprivation of her constitutional rights in this case unless the government had a constitutional duty to protect Barbera. See Benson v. Cady, 761 F.2d 335, 339 (7th Cir. 1983).

It is settled that there is no general constitutional right to government protection from criminals or madmen and, as a result, no constitutional duty on the part of the government to provide such protection. E.g., Estate of Gilmore v. Buckley, 787 F.2d 714, 720 (1st Cir.1986); Ellsworth v. City of Racine, 774 F.2d 182, 185 (7th Cir.1985), cert. denied, ___ U.S. ___, 106 S.Ct. 1265, 89 L.Ed.2d 574 (1986); Fox v. Custis, 712 F.2d 84, 89 (4th Cir.1983). However, a right and corollary duty to basic protective services may arise out of a special relationship assumed or created by a government entity in regard to a particular person, Ellsworth v. City of Racine, 774 F.2d at 185, such as when the government itself has put an individual in danger, Escamilla v. City of Santa Ana, 796 F.2d 266, 269 (9th Cir.1986). The contours of what constitutes a "special relationship" between citizens and the government, acting through its officers, are hazy and indistinct. Ellsworth v. City of Racine, 774 F.2d at 185.

In general, it is established that, when the government takes a person into custody or otherwise assumes responsibility for that person's welfare, a "special relationship" may be created with respect to that person, and the Constitution imposes a concomitant duty on the government to assume some measure of responsibility for that person's safety and wellbeing. Estate of Gilmore v. Buckley, 787 F.2d at 721. Thus, it has been held that the Constitution imposes a duty on the government with respect to the safety or welfare of prison inmates, see, e.g., Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); children in the custody and care of state social service agencies, see, e.g., Doe v. New York City Department of Social Services, 709 F.2d 782 (2d Cir.), cert. denied, 464 U.S. 864, 104 S.Ct. 195, 78 L.Ed.2d 171 (1983); and persons in the care of government hospitals, see, e.g., Morrison v. Washington County, 700 F.2d 678 (11th Cir.), cert. denied, 464 U.S. 864, 104 S.Ct. 195, 78 L.Ed.2d 171 (1983). Estate of Gilmore v. Buckley, 787 F.2d at 721. See also Jensen v....

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