Coyne v. U.S.
| Decision Date | 30 May 2003 |
| Docket Number | No. C.A. 01-11270-NG.,C.A. 01-11270-NG. |
| Citation | 270 F.Supp.2d 104 |
| Parties | John COYNE, Plaintiff, v. UNITED STATES of America, et al., Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Harry L. Miles, Jon B. Heyman, Green, Miles, Lipton, White & Fitz-Gibbon, Northampton, for John Coyne, Plaintiff.
Roberta T. Brown, Jeremy M. Sternberg, United States Attorney's Office, Boston, for Margaret Cronin, Unknown Assistant U.S. Attorney, Unknown Agents of the FBI Individually, Defendants.
MEMORANDUM AND ORDER RE: MOTIONS TO DISMISS
Plaintiff John Coyne ("Coyne") alleges that defendants—the United States of America ("the government"), Special Agent ("SA") Margaret Cronin of the Federal Bureau of Investigation ("FBI"), an unknown assistant U.S. Attorney, and unknown FBI agents—cultivated him as a confidential prison informant and then exposed his identity and failed to protect him from violent retaliation. As a result, Coyne alleges, his teeth were broken in an assault and he continues to live in fear. His First Amended Complaint seeks damages for negligence (Count I); breach of contract (Count II); and constitutional Bivens claims (Count III). It also seeks injunctive relief (Count IV).
SA Cronin and the government have moved to dismiss the Amended Complaint. For the reasons set forth below, SA Cronin's motion [document # 27] is GRANED with respect to Counts I, II and IV but is DENIED with respect to Count III. The government's motion [document # 28] is GRANTED with respect to Counts III, and IV but is DENIED with respect to Count I.
In adjudicating a motion to dismiss, the Court must accept all allegations in the complaint as true and all reasonable inferences must be drawn in favor of the plaintiff. See Rockwell v. Cape Cod Hosp., 26 F.3d 254, 255 (1st Cir.1994). The complaint should be dismissed only if "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984).
Coyne alleges that in 1999, while he was incarcerated in Concord State Prison, in Concord, Massachusetts, he began to send unsolicited letters to the Concord Security Team containing information about corruption in prison and past or planned illegal activities by past and present inmates. In September of 1999, Coyne was brought to the U.S. Federal Courthouse in Boston and met in a conference room with an unnamed Assistant United States Attorney (AUSA), two FBI agents, and a Cambridge police officer assigned to the task force. One of the FBI agents, SA Cronin, who directed the meeting, expressed her appreciation for the information received from the plaintiff and stated that the information was accurate and reliable. Coyne then told SA Cronin that he had additional information about past crimes committed by some individuals who were specifically of interest to the government, but that he was concerned for his safety. SA Cronin assured Coyne of his safety and told him she would "take whatever steps necessary" to keep him safe. Coyne then relayed more information to SA Cronin. II During the course of the meeting, SA Cronin asked Coyne if he would pretend to be willing to take part in an armored car robbery that was in the planning stages. She instructed Coyne to send a letter to one of the individuals planning the robbery, an inmate at Norfolk State Prison. Because mail cannot be sent from one penal institution to another, SA Cronin instructed Coyne to send both a "dummy" letter, along with a second letter containing more information for the FBI, to a mail drop at an address she provided. SA Cronin further told Coyne that the letter to the target would then be forwarded to the inmate's girlfriend and that the letter containing the FBI information would be kept by SA Cronin herself. During the next month, Coyne followed those instructions and sent the requested letters to the FBI mail drop.
On or about October 5, 1999, Coyne again met with SA Cronin. SA Cronin stated that the FBI had made a "terrible mistake" and had forwarded the entire package of materials to the inmate's girlfriend, including the letter from Coyne to SA Cronin, which revealed that he was acting as a government informant. SA Cronin expressed her concern for the safety of Coyne and his family and promised to do everything necessary to help protect them. She subsequently called Maria Coyne ("Ms.Coyne"), the former wife of the plaintiff and mother of their four children, and informed Ms. Coyne that her family was in danger. To help protect Ms. Coyne and her children, she also jcalled local police in Ms. Coyne's town to inform them of the potential danger.
After the meeting, another inmate accused Coyne of "ratting" on people. That inmate ultimately broke Coyne's teeth. Coyne was transferred to the Hampshire House of Correction for his protection, which prevented him from entering a halfway house program and resulted in a lengthier period of more stringent custody than he otherwise would have faced. Since his release from prison, he has lived in fear for his safety. The FBI and the U.S. Attorney's Office have refused to admit Coyne into the Witness Protection Program, despite his requests.
The U.S. Attorney certified that SA Cronin was acting within the scope of her employment in relation to the events alleged in the complaint. Therefore, the defendants argued, the negligence claim lies only against the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-2680 and must be dismissed as to SA Cronin. Plaintiff moved to vacate the scope of employment certification [document # 32], which I previously denied for reasons I will now explain by way of background to my decision on the Motions to Dismiss.
Under the Westfall Act, the Attorney General may certify that a federal employee was acting within the scope of his/her office or employment at the time of an incident that serves as the basis for a common law tort claim against the employee. See 28 U.S.C. § 2679(d)(1); Lyons v. Brown, 158 F.3d 605, 606 (1st Cir.1998). The Attorney General's responsibility is delegated to the United States Attorneys. See id at 607 n. 1. If the employee is certified, then he or she is immune from common law tort claims arising from certified conduct and the United States is substituted as defendant for those claims. Id. at 606-607.
Scope of employment certifications are reviewable by the district courts. See id. at 607. If challenged, the district court must review the scope of employment issue de novo, and must not give deference to the U.S. Attorney's determination. See Operation Rescue v. United States, 975 F.Supp. 92, 102 (D.Mass.1997).
Plaintiff argued that allowing the employment certification without discovery would be premature, particularly in the absence of any indication that the U.S. Attorney conducted his own investigation. Plaintiff further argued that, since defendants acknowledge that SA Cronin lacked actual authority to offer entry into the Witness Protection Program, she was acting outside the scope of her employment. Neither argument could survive careful scrutiny.
A scope of employment certification clearly should not be vacated merely for lack of investigation by the U.S. Attorney. As the court explained in Operation Rescue, the remedy for any defect in employment certification is de novo review by the district court, not an inquiry into the U.S. Attorney's reasons for granting the initial certification. See id. at 102.
Here, moreover, the record is clear that SA Cronin was acting within the scope of her employment, at least with respect to the alleged negligent conduct of exposing Coyne's identity and failing to protect him. While federal law governs whether an individual is a federal employee and defines the "nature and contours" of her official responsibilities, the law of the state where the allegedly tortious act occurred determines the scope of employment. See Lyons, 158 F.3d at 609. Under Massachusetts law, the applicable test is whether the act in question was performed in furtherance of the employer's work. See Clickner v. City of Lowell, 422 Mass. 539, 542, 663 N.E.2d 852 (1996). Factors which may be considered in making such a determination are "whether the conduct in question is of the kind the employee is hired to perform, whether it occurs within authorized time and space limits, and whether it is motivated, at least in part, by a purpose to serve the employer." Id. Here, it seems crystal clear that SA Cronin's dealings with Coyne as an informant were within the scope SA Cronin's employment under the Clickner criteria.
Plaintiffs only argument—that SA Cronin's alleged promise to place Coyne in witness protection was beyond her authority1 and therefore outside the scope of her employment—cannot invalidate the certification. First, even if plaintiffs premise that SA Cronin's purportedly unauthorized promise falls outside the scope of employment were correct (which it is not), it would not follow that the negligent conduct at issue—exposing Coyne's identity and failing to protect him—also falls outside the scope of employment. See Lyons, 158 F.3d at 608-609 (). Second, the complaint does not even allege that SA Cronin promised to put Coyne in the Witness Protection Program, only that "she would do everything that she could" to protect the plaintiff and his family. Finally, even if SA Cronin lacked authority to keep her promise, she clearly made it "to serve her employer" in the meaning of Clickner, placing it within the scope of employment.
While the parties do not expressly...
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