Hoston v. Silbert, 81-1723

• Decision Date: 29 June 1982
• Docket Number: No. 81-1723,81-1723
• Citation: 681 F.2d 876,220 U.S. App. D.C. 361
• Parties: Wanda Alexander HOSTON, et al., Appellants, v. Earl SILBERT, U. S. Attorney for the District of Columbia, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 876

681 F.2d 876

220 U.S.App.D.C. 361

Wanda Alexander HOSTON, et al., Appellants, v. Earl SILBERT, U. S. Attorney for the District of Columbia, et al.

No. 81-1723.

United States Court of Appeals, District of Columbia Circuit.

Submitted Without Oral Argument.

Decided June 29, 1982.

Appeal from the United States District Court for the District of columbia.

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

Charles F. C. Ruff, U. S. Atty., Washington, D. C., at the time the brief was filed, Royce C. Lamberth, Kenneth M. Raisler and Jason D. Kogan, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellees.

Before ROBB, Senior Circuit Judge, WALD, Circuit Judge, and OBERDORFER, ^* United States District Judge for the District of Columbia.

Opinion PER CURIAM.

Dissenting opinion filed by Circuit Judge ROBB.

PER CURIAM:

The issue in this appeal is whether the district court erred in dismissing for lack of subject-matter jurisdiction, see 28 U.S.C. Rule 12(b)(1), ¹ appellants' wrongful death action brought against the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b). We hold that the district court was in error and, accordingly, reverse and remand the case for appropriate proceedings.

I. BACKGROUND

Curtis E. Hoston, Jr. died on October 27, 1976, as a result of injuries inflicted by deputy United States Marshals and other federal officials who held him in custody while he was awaiting arraignment before the Superior Court for the District of Columbia. Appellants' Complaint avers that Hoston was beaten to death while "unarmed, prone and manacled" and "left to die for over 1/2 hour without medical attention" in a holding cell. Joint Appendix ("J.A.") at 14. Appellees, on the other hand, claim that Hoston seized a revolver from one of the deputies and fired a shot in the courtroom and that he was fatally injured

during the ensuing effort to subdue him. In May 1979, appellants, who are the administrator and next friends of Hoston's estate, brought this action against forty individual defendants and the United States under a variety of statutory and common law theories, including wrongful death, civil conspiracy and failure to prosecute. Appellants limit this appeal, however, to the dismissal of the wrongful death claim against defendant United States.

II. ANALYSIS

The FTCA vests in the district court exclusive jurisdiction over claims for money damages against the United States for

personal injury or death 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.

28 U.S.C. § 1346(b). The district court concluded that appellants' pleadings failed to satisfy the FTCA requirement that an official's tortious acts be committed "within the scope of his office or employment." The court relied primarily upon that portion of appellants' complaint which states that the officials who beat Hoston to death

were at all times duly appointed and qualified U S Marshalls (sic) agents of the U. S. Government and acting in the course of their employment & duties, however certain of the activities complained of herein were willfully & maliciously in excess of and outside the scope of their employment.

J.A. at 13 (emphasis added). The court further observed that the theme of willful and malicious misconduct is reflected throughout the complaint, and "nowhere does the complaint state a cause of action for negligence." Hoston v. Silbert, 514 F.Supp. 1239, 1242, (D.D.C.1981), J.A. at 37, 39.

The quoted language notwithstanding, we think that appellants' complaint, taken as a whole, alleges acts sufficient to establish jurisdiction, although it may fall at the outer limits of liberal reading. ² First, while appellants did not employ the term "negligence," the allegation that the deceased was "left to die for over 1/2 hour without medical attention" raises the issue of negligence as a basis of relief if the facts fail to show intentional wrongdoing. ³

                We must also reject the district court's implication that willful and malicious misconduct is not actionable under the FTCA.  Congress has specifically provided that section 1346(b) shall apply to the intentional torts of federal law enforcement officers, including claims arising out of assault and battery.  28 U.S.C. § 2680(h).  4  Thus, appellants' allegation of willful conduct by the government agents should not in itself deprive the district court of jurisdiction where, as here, the claim arose out of an alleged battery.  5  The question remaining is whether the complaint alleges facts sufficient to meet the FTCA requirement that the government employee's tortious act be committed "while acting within the scope of his office or employment."  28 U.S.C. § 1346(b).  Whether given acts are within the scope of employment is ultimately a legal question.  See, e.g., Dornan v. United States, 460 F.2d 425, 427 (9th Cir. 1972) (whether particular act "within the scope of an employee's federal employment depends upon an analysis of the facts under the law of the place where the tort occurred").  Thus, our inquiry into the adequacy of the factual allegations to meet the applicable legal standard is not foreclosed by the conclusory opinion expressed in the complaint.  Because liability depends upon "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," 28 U.S.C. § 1346(b), we must look to District of Columbia respondeat superior and agency rules to determine whether these United States employees were acting within the scope of their employment.  We find that appellants have alleged facts which, if proved, would establish vicarious liability under the laws of the District of Columbia
                

In Lyon v. Carey, 533 F.2d 649 (D.C.Cir. 1976), ⁶ this court described the "outer bounds of respondeat superior." Id. at 651. The court held that an employer would be liable if an assault by an employee grew out of a foreseeable "job-related controversy" ⁷ Appellants' pleadings make out a case which could satisfy the Lyon-International Distributing Corp. scope-of-employment criteria. A United States Marshal's duties-escorting and supervising frequently hostile and potentially dangerous prisoners-create a strong likelihood of violent confrontations in the course of which an officer could lose his temper and use tortiously excessive force. ¹⁰ In paragraph one of the complaint, appellants allege that marshals assaulted the deceased while he was a "prisoner of the U. S. Marshals in the lock-up of the Arraignment Court of the District of Columbia Superior Court." J.A. at 14. Appellants thus placed the deceased in the marshals' custody at the time of the alleged assault, connecting the alleged tort with "a purpose to serve (the) principal."

as opposed to a "personal adventure." Id. A subsequent case, International Distributing Corp. v. American District Telegraph Co., 569 F.2d 136, 139 (D.C.Cir. 1977), ⁸ clarified that foreseeability must be combined with a purpose to further the employer's interest: "In the District of Columbia, '(u)nless an assault ... is activated in part at least by a purpose to serve a principal, the principal is not liable.' " (quoting Meyers v. National Detective Agency, Inc., 281 A.2d 435, 437 (D.C.App.1971)). ⁹

CONCLUSION

For the foregoing reasons, we conclude that appellants have alleged facts upon which jurisdiction can be based. We therefore reverse the district court's dismissal of appellants' wrongful death claim against the United States and remand the case for proceedings not inconsistent with this opinion.

ROBB, Senior Circuit Judge, dissenting:

As I understand the majority opinion it concludes that the complaint alleges that Deputy Marshal Burch and the other marshals, acting within the scope of their employment, assaulted Hoston and then negligently left him to die without medical attention; in sum, that in performing their duties the marshals negligently injured Hoston. The difficulty with this theory is that it can be supported only by radical plastic surgery on the complaint. The theory of the case alleged in the complaint is that the marshals murdered Hoston and that in so doing they acted outside the scope of their employment. Thus, paragraph 1, J.A. 14 states 1. This cause of action arises because of the murder, homicide and wrongful death of Curtis Hoston Jr. on Oct. 27, 1976 while a prisoner of the U. S. Marshalls in the lock-up of the Arraignment Court of the District of Columbia Superior Court. Defendant Asst. U. S. Marshall Carlisle Burch and others did willfully and maliciously and with a sadistic disregard for human life, "stomped" to death Mr. Hoston who being unarmed, prone and manacled was the recipient of such a frenzied profusion of blows that he was beaten repeatedly after loosing (sic) consciousness from his breastplate having been conpressed to such a degree that his heart became ruptured after being impailed upon the vertebrae of his spine and then left to die for over 1/2 hour without medical attention in the U. S. Marshall's holding cell of the District of Columbia Superior Courthouse. and (sic) the official conspiracy and cover-up thereafter. (emphasis supplied)

Paragraph 21, J.A. 13 states:

21. Defendants Burch and John Doe I, II, III & IV were at all times duly appointed and qualified US Marshalls agents of the U. S. Government and acting in the course of their employment & duties, however certain of the activities complained of herein were willfully & maliciously in excess of and outside the scope of their employment. (emphasis supplied)

I reject as fanciful any suggestion that murder is within the scope of the employment of a...