Hoston v. Silbert, Civ. A. No. 79-1267.

• Decision Date: 22 May 1981
• Docket Number: Civ. A. No. 79-1267.
• Citation: 514 F. Supp. 1239
• Parties: Wanda Alexander HOSTON et al., Plaintiffs, v. Earl SILBERT et al., Defendants.
• Court: U.S. District Court — District of Columbia

514 F. Supp. 1239

Wanda Alexander HOSTON et al., Plaintiffs, v. Earl SILBERT et al., Defendants.

Civ. A. No. 79-1267.

United States District Court, D. C. District of Columbia.

May 22, 1981.

David M. Basker, Washington, D. C., for plaintiffs.

Jason D. Kogan, Asst. U. S. Atty., Washington, D. C., for defendants.

MEMORANDUM OPINION AND ORDER

JOYCE HENS GREEN, District Judge.

This matter is before the Court on the motion of the United States and various federal officials to dismiss this action for lack of jurisdiction, for failure to state a claim upon which relief can be granted and because it is barred by the doctrine of res judicata. Based on the memoranda submitted and opposition thereto, jurisdiction is lacking and the complaint states no claim that can afford relief to the plaintiffs.

Plaintiffs are the administrator and next friends of the estate of Curtis E. Hoston, whose death on October 27, 1976 is the basis for this action. While Mr. Hoston, as a prisoner, was awaiting his arraignment that day before a judge of the Superior Court of the District of Columbia, he was beaten and, as a result, died. The parties differ as to the cause and surrounding circumstances of Hoston's death, the plaintiffs claiming that he was intentionally murdered by certain of the defendants and the defendants maintaining that Hoston drew a revolver from a Deputy United States Marshal and fired a shot in the courtroom, after which deputy marshals and other officials sought to subdue Hoston and in the process injured him fatally. For purposes of the motion to dismiss, however, the complaint's allegations must be accepted as if they had been proven.

Plaintiffs allege as one cause of action that federal prosecutors participated in an attempt to "cover up" the events of October 27, 1976, that they engaged in a conspiracy to prevent the investigation and prosecution of those alleged to have caused Hoston's death, and that the

tentacles of that conspiracy now extend and infiltrate into the Congress & STAFF, the Executive Branch, National security & defense, The Judiciary, The Ensuing Agro-Energy Resource Monopoly, the financial sector, and the media and communications sector.

Complaint at ¶ 4. Referring to this claim as one for "Embracery," plaintiffs not only fail to state a cause of action but also ignore the Court's prior order in this case that dismissed the certain employees of the District of Columbia, and the District itself, as defendants in this action on the ground that plaintiffs cannot recover in a civil action for the alleged conspiracy not to prosecute the individuals who may have been connected with Hoston's death. See Hoston v. Silbert, Order (D.D.C. Jan. 9, 1981) at 3. The offense of embracery is based on an attempt to influence improperly a juror, and is not predicated on a failure to prosecute. See 26 Am.Jur.2d at 619-20. Research discloses no embracery statute in the District of Columbia from which a cause of action could be implied, and only one case where civil liability was based on a finding of guilt for embracery. See Doan's Case, 5 Pa.Dist. 211. Plaintiffs cannot recover damages from individual prosecutors or from the United States for embracery in the District of Columbia.

Additionally, federal prosecutors and the United States are not liable for the failure to prosecute anyone in connection with Hoston's death. 28 U.S.C. § 2680(a) provides that the Federal Tort Claims Act does not apply to

any claim based upon an act or omission of an employee of the Government ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.

Id. The decision of a prosecutor to institute a criminal proceeding is a completely discretionary act. Powell v. Katzenbach, 359 F.2d 234 (D.C.Cir.1965). See also Smith v. United States, 375 F.2d 243 (5th Cir.), cert. denied 389 U.S. 841, 88 S.Ct. 76, 19 L.Ed.2d 106 (1967) ("The discretion of the Attorney General in choosing whether to prosecute or not to prosecute, or to abandon a prosecution already started, is absolute." Id. at 247.)

Additionally, prosecutors are immune from liability predicated on a decision not to institute a criminal proceeding. See Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976).

As to the pendent common law claims, the plaintiffs concede that their cause of action for wrongful death is barred by the District of Columbia one year statute of limitations. See D.C. Code § 16-2702. The other common law allegations in the complaint, difficult...