Fluellen v. US DEPT. OF JUSTICE DRUG ENF. ADMIN.

• Decision Date: 11 March 1993
• Docket Number: No. 92-CV-73013-DT.,92-CV-73013-DT.
• Parties: Trina FLUELLEN, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE DRUG ENFORCEMENT ADMINISTRATION, et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

816 F. Supp. 1206

Trina FLUELLEN, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE DRUG ENFORCEMENT ADMINISTRATION, et al., Defendants.

No. 92-CV-73013-DT.

United States District Court, E.D. Michigan, S.D.

March 11, 1993.

COPYRIGHT MATERIAL OMITTED

Ada Montgomery, Oak Park, MI, for plaintiff.

William Woodard, Asst. U.S. Atty., Detroit, MI, for defendant Government.

Laurie M. Sabon, City of Dearborn Legal Dept., Dearborn, MI, for defendant City of Dearborn.

Terry A. Wash, City of Detroit Law Dept., Detroit, MI, for defendant City of Detroit.

ORDER

HACKETT, District Judge.

Defendants United States Department of Justice Drug Enforcement Administration (DEA), United States Immigration and Naturalization Service (INS), and Michael T. Hawes (collectively Federal defendants) filed a motion pursuant to Fed.R.Civ.P. 12(b) for dismissal of the complaint against them. Separately, defendants City of Dearborn, Dearborn Police Department, and Officer Michael Lorence (collectively Dearborn defendants) filed a motion for summary judgment pursuant to Fed.R.Civ.P. 56(b). Each motion cites several reasons for dismissal or summary judgment. Plaintiff opposes both motions.

I. FACTS

Plaintiff's complaint arises out of events occurring on or about October 8, 1991, in the City of Detroit. On that date, defendants Hawes, Lorence (identified in plaintiff's complaint as "Lawrence"), and two unnamed officers of INS "asserted legal authority over plaintiff, threatened her, and detained her" in a trailer at the City of Detroit auto pound for approximately two hours. Plaintiff asserts that defendants yelled at her, forcefully prevented her from driving away in her car, threatened her until she exited her vehicle, "laid hands" upon her and escorted her to the trailer, and threatened her with incarceration during her two-hour detention despite her continuous protests about the detention and requests for immediate release. After defendant Alfred Brooks was contacted and arrived at the trailer, plaintiff was eventually allowed to leave.

In her complaint plaintiff asserts state law claims of false imprisonment (count I), assault and battery (count II), and intentional infliction of emotional distress (count V). Plaintiff also alleges claims under 42 U.S.C. § 1983 against the police officers for violation of her Constitutional rights under the Fourth Amendment and under the Michigan constitution (count III) and against the DEA, INS, City of Dearborn, Dearborn Police Department, City of Detroit and Detroit Police Department for their policies, practices and failure to properly train, supervise, review and discipline their officers resulting in the actions cited in the complaint which amounted to a violation of plaintiff's Fourth and Fourteenth Amendment rights and of her rights under the Michigan constitution (count IV).

II. DISCUSSION

A. Standard of review.

On a motion to dismiss "the issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). In ruling on a motion to dismiss, "whether on the grounds of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader." Id. See Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Ang v. Procter & Gamble Co., 932 F.2d 540, 544 (6th Cir.1991). "Dismissals of complaints filed under the civil rights statutes are scrutinized with special care." Mercado v. Kingsley Area Schools, 727 F.Supp. 335, 338 (W.D.Mich.1989) (citing Kent v. Johnson, 821 F.2d 1220, 1223 (6th Cir.1987); Brooks v. Seiter, 779 F.2d 1177, 1180 (6th Cir.1985)). The complaint must provide enough information to outline the elements of a claim or to permit inferences that these elements exist. Id. Plaintiff must present more than conclusory allegations. Id.

B. Federal defendants' motion to dismiss.

The federal defendants argue that plaintiff's claim against them should be dismissed for lack of jurisdiction or for failure to state a claim because: (1) DEA and INS as agencies of the United States government are not proper parties to the suit; (2) the common law tort claims against defendant Hawes are more properly brought under the Federal Tort Claims Act, 28 U.S.C. § 2679(d)(1), against the United States and should be dismissed for failure to exhaust administrative remedies as required under 28 U.S.C. § 2675. They further contend that plaintiff's § 1983 claims should be dismissed because: (1) defendant Hawes as a federal agent acts under color of federal law not state law as required for a § 1983 claim; (2) the complaint fails to indicate whether Hawes is being sued in his individual or official capacity and thus does not make the requisite showing of jurisdiction; (3) if defendant Hawes is being sued in his official capacity, it is barred by sovereign immunity; and, (4) if defendant Hawes is being sued in his individual capacity, the complaint fails to make the requisite factual showing to avoid qualified immunity.

1. Agencies are not proper parties.

The federal defendants first argue that the DEA and INS as agencies of the United States government cannot be sued eo nominee unless so authorized under statute or because the agency is an offspring of a suable entity. See Blackmar v. Guerre, 342 U.S. 512, 515, 72 S.Ct. 410, 411, 96 L.Ed. 534 (1952). The court agrees with this contention. Rather than the specific agencies in this case, the proper party is the United States. Under Fed.R.Civ.P. 15(a) plaintiff should be granted leave to amend the complaint unless amendment is futile. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). In order to determine if amendment would be futile, the court must now address the separate claims against the federal defendants.

2. Pendent state-law claims.

The federal defendants contend that the pendent state-law claims in counts I, II, and V are tort claims which must be brought against the United States under the Federal Torts Claims Act (FTCA), 28 U.S.C. §§ 1346(b) and 2671-79. They also argue that pursuant to § 2679(d)(1), the United States should be substituted as the only proper defendant on the common-law tort claims. Additionally, since plaintiff has not exhausted the administrative remedies as required by § 2675, they maintain the court lacks subject matter jurisdiction and those claims should be dismissed.

The court agrees with these arguments but finds that, under the circumstances of this case, the dismissal of these counts against the federal defendants should be without prejudice. The provisions of the FTCA apply to claims including assault, battery, and false imprisonment arising from acts or omissions of federal investigative or law enforcement officers. 28 U.S.C. § 2680(h). Individual federal officers are immune from suit on common-law torts under the provision in the FTCA which makes suit against the United States the exclusive remedy for such claims.¹Rivera v. United States, 928 F.2d 592, 608-09 (2nd Cir.1991). Failure to name the United States as defendant in a FTCA suit results in a lack of subject matter jurisdiction. Allgeier v. United States, 909 F.2d 869, 871 (6th Cir.1990).

Assuming arguendo that suit was brought under the FTCA against the United States, a claim must first be presented to the appropriate federal agency and that claim be finally denied by the agency in writing prior to filing a FTCA claim.² 28 U.S.C. § 2675(a). A tort claim against the United States is barred unless it is presented in writing to the appropriate federal agency within two years after such claim accrues or unless FTCA action is begun six months after final denial of the claim by the agency. 28 U.S.C. § 2401(b). A claim under the FTCA must be filed within six years of when the action first accrues. 28 U.S.C. § 2401(a).

In the present case, plaintiff's common-law tort claims should be filed against the United States under the FTCA rather than the DEA, INS, or agent Hawes. Leave to amend the complaint would be appropriate but plaintiff has not exhausted her administrative remedies. However, plaintiff is not yet foreclosed from pursuing those remedies. Plaintiff claims her cause of action arises out of events occurring on October 8, 1991. Neither the two-year statute of limitations for filing a claim with the appropriate federal agency nor the six-year statute of limitations for the FTCA have run. Accordingly, plaintiff's common-law tort claims against the federal defendants should be dismissed without prejudice in order to follow the procedures as required under the FTCA.

3. Section 1983 claims—color of federal law.

Plaintiff alleges violations of 42 U.S.C. § 1983 in count III against agent Hawes and in count IV against the DEA and INS. First, the federal defendants maintain that defendant Hawes is not subject to suit under § 1983 since he acts under color of federal law, not state law as required by § 1983. The court agrees with this contention to the extent that the allegations would be against Hawes acting on his own.

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured....

42 U.S.C. § 1983. Section 1983 provides no remedy for deprivation of rights by federal officials acting under color of federal law. Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir.1987). However, "when a non-state actor (which includes a federal agent) conspires with state officials to deprive an individual of his constitutional rights, an action under section 1983 will lie against the non-state actor." Smith...