Dirienzo v. US

• Decision Date: 12 July 1988
• Docket Number: No. Civ. N-85-200 (PCD).,Civ. N-85-200 (PCD).
• Citation: 690 F. Supp. 1149
• Parties: Anthony DIRIENZO, III v. UNITED STATES of America.
• Court: U.S. District Court — District of Connecticut

690 F. Supp. 1149

Anthony DIRIENZO, III v. UNITED STATES of America.

No. Civ. N-85-200 (PCD).

United States District Court, D. Connecticut.

July 12, 1988.

COPYRIGHT MATERIAL OMITTED

Mark D. Arons, Ginsberg, Ginsburg & Alderman, West Haven, Conn., for plaintiff.

Frank H. Santoro, Asst. U.S. Atty., New Haven, Conn., for defendant.

RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

DORSEY, District Judge.

Plaintiff brings this action against the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346(b) and § 2680(h), alleging negligence, false arrest, and false imprisonment by agents of the Federal Bureau of Investigation.¹ Defendant and plaintiff move for summary judgment.

Facts

Plaintiff is a former New Haven police officer and former Deputy United States Marshal. His lawsuit arises from an unfortunate case of mistaken identity, the outlines of which are not in dispute. On September 9, 1981, a branch of the Chemical Bank in New York City was robbed by a man carrying a handgun. Earlier that day, another robbery attempt at a New York City branch of CitiBank, apparently by the same man, had been foiled by bank employees. Bank surveillance photographs of the Chemical Bank robbery were distributed by the FBI in a flyer describing the robbery. In mid-1982, an informant tentatively identified plaintiff from the flyer as the person depicted in the bank photographs. In January 1983, FBI Special Agent Ford Cole showed the bank photographs to three members of the New Haven police force who had worked with plaintiff.² All three identified plaintiff as the bank robber in the photographs. Plaintiff's Exhibit ("P.Ex.") E, J, K. Two also stated that plaintiff owned a handgun. P.Ex. E, K. On January 28, 1983, on the basis of these identifications, FBI Special Agent James Pitman executed a criminal complaint in the Southern District of New York charging plaintiff with a violation of 18 U.S.C. § 2113(d) in the Chemical Bank robbery and seeking a warrant for his arrest. P.Ex. A. A warrant for plaintiff's arrest was issued the same day by a federal magistrate. Defendant's Exhibit ("D.Ex.") 4. On February 8, 1983, while vacationing in Florida with his wife, plaintiff was arrested by local police and Special Agent Flynn of the FBI pursuant to the warrant. P.Ex. C. He was held overnight, then ordered to appear in the Southern District of New York for arraignment. On March 2, 1983, he was indicted for the bank robbery by a grand jury sitting in the Southern District.

From the beginning, plaintiff denied the charge. Fingerprints taken from a newspaper handled by the bank robber did not match those of plaintiff. P.Ex. B-1, B-2, U. On March 30, 1983, a witness to the CitiBank robbery attempt viewed a photo array including plaintiff's photograph, but did not identify him as the robber. P.Ex. R. Plaintiff volunteered to undergo two polygraph tests. The first was inconclusive, but the second indicated no deception in his denial of involvement. P.Ex. F. Thereupon, the United States Attorney for the Southern District of New York formally declined to prosecute and the case was nolled on May 9, 1983. P.Ex. G. In September 1983, another person, then incarcerated on state charges, confessed to the robberies. P.Ex. H.

Discussion

A. Summary Judgment Standard

Fed.R.Civ.P. 56(c) provides, in part, that summary judgment shall be rendered only when a review of the entire record demonstrates "that there is no genuine issue as to any material fact." The burden falls on the moving party to establish that no relevant facts are in dispute. Heyman v. Commerce & Industry Ins. Co., 524 F.2d 1317, 1319-20 (2d Cir.1975); accord Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 ... (1970). Moreover, in determining whether a genuine issue has been raised, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 82 S.Ct. 993, 994, 8 L.Ed.2d 176 ... (1962) (per curiam); Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir.1980). Therefore, not only must there be no genuine issue as to the evidentiary facts, but there must also be no controversy regarding the inferences to be drawn from them. Schwabenbauer v. Bd. of Educ., 667 F.2d 305, 313 (2d Cir.1981), accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 ... (1986).

Properly employed, summary judgment allows the court to dispose of meritless claims before becoming entrenched in a frivolous and costly trial. Knight v. U.S. Fire Ins. Co., 804 F.2d 9 (2d Cir.1986), cert. denied, ___ U.S. ___, 107 S.Ct. 1570 94 L.Ed.2d 762 ... (1987). It must, however, be used selectively to avoid trial by affidavit. Judge v. Buffalo, 524 F.2d 1321 (2d Cir.1975). Hence, the fundamental maxim remains that on a motion for summary judgment a court "cannot try issues of fact; it can only determine whether there are issues to be tried." Heyman, 524 F.2d at 1319-20. As long as the plaintiff has adduced sufficient facts to substantiate the elements of his claim, summary judgment is inappropriate. Celotex Corp. v. Catrett, 477 U.S. 317 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 ... (1986).

Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57-58 (2d Cir.1987).

B. Federal Tort Claims Act

The Federal Tort Claims Act, 28 U.S.C. § 1346(b), generally authorizes suits against the United States for damages

for injury or loss of property, or personal injury ... 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.

This broad waiver of sovereign immunity is subject to the limitations contained in §§ 2671-2680. Thus, 28 U.S.C. § 2674 specifies the scope of the government's liability with regard to acts or omissions of its employees:

The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances

....

The waiver of sovereign immunity expressly extends to suits "with regard to acts or omissions of investigative or law enforcement officers of the United States Government ... on any claim arising ... out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution." 28 U.S.C. § 2680(h)(1974 amendment). However, where acts or omissions of law enforcement officers cause unjustified arrest, prosecution, or imprisonment, the Federal Tort Claims Act limits the government's liability to instances where the officers act tortiously. Arnsberg v. United States, 757 F.2d 971, 978 (9th Cir.1985); cf. Caban v. United States, 728 F.2d 68, 73-74 (2d Cir.1984) (government not liable for false imprisonment where INS agent was privileged to detain plaintiff).

"The reference in § 1346(b) to `the "law of the place" means the "whole law" of the state where the incident took place.'" Caban, 728 F.2d at 72, quoting Lambertson v. United States, 528 F.2d 441, 443 (2d Cir.), cert. denied, 426 U.S. 921, 96 S.Ct. 2627, 49 L.Ed.2d 374 (1976). Thus, the court looks to whatever law, including federal law, the state courts would apply in like circumstances involving a private defendant. Caban, 728 F.2d at 72. While the second amended complaint does not set forth separately labeled theories or causes of action, plaintiff alleges that he was falsely arrested and imprisoned in Florida, Second Amended Complaint, ¶ 5, and that his arrest and prosecution for the bank robbery was caused by the negligence of law enforcement officers employed by the FBI. Id., ¶ 10. The acts and omissions of which plaintiff complains took place in Florida, New York, and Connecticut.

1. False Arrest/False Imprisonment

Plaintiff was arrested in Florida by FBI Agent Flynn with the assistance of local police, pursuant to a warrant issued by a federal magistrate in the Southern District of New York. He was held overnight in a Dade County jail. Since plaintiff's arrest and imprisonment occurred in Florida, the tort law of that state governs his claim in respect of the arrest.³ See Caban, 728 F.2d at 72; Benjamin v. United States, 554 F.Supp. 82, 85 (E.D.N.Y. 1982).

Under Florida law, the causes of action for false arrest and false imprisonment share identical elements. Weissman v. K-Mart Corp., 396 So.2d 1164, 1165 n. 1 (Fla.App.1981). However, under Florida law, like that of most jurisdictions, the arrest and detention of an innocent person carries no tort liability where the arrest and imprisonment was otherwise privileged or justified by law. Fisher v. Payne, 93 Fla. 1085, 113 So. 378, 380 (1927); Johnson v. Weiner, 155 Fla. 169, 19 So.2d 699, 799 (1944); see, e.g., Restatement (2d) Torts, § 122-124 (1965); accord Broughton v. State, 37 N.Y.2d 451, 373 N.Y.S.2d 87, 335 N.E.2d 310, 314, cert. denied, 423 U.S. 929, 96 S.Ct. 277, 46 L.Ed.2d 257 (1975); Zanghi v. Incorporated Village, 752 F.2d 42 (2d Cir.1985) (finding of probable cause defeats false imprisonment claim under New York law). It is well settled that an arrest made pursuant to a valid warrant issued by a court of competent jurisdiction is privileged and cannot support an action for false arrest. Johnson, 19 So.2d at 700; accord Restatement (2d) Torts, § 35, comment a (1965); Benjamin, 554 F.Supp. at 85 (applying New York law under Federal Tort Claims Act); Clewley v. Brown Thomson, Inc., 120 Conn. 440, 444, 181 A. 531 (1935).

Applying these principles to the undisputed facts, it is clear that plaintiff's arrest and imprisonment were not tortious. The arrest was made pursuant to an arrest warrant issued by a federal magistrate with subject matter jurisdiction over the offense charged. The process was facially valid and plai...