Liles v. United States

• Decision Date: 30 June 1986
• Docket Number: Civ. A. No. 85-2919.
• Citation: 638 F. Supp. 963
• Parties: James A. LILES, Plaintiff, v. UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — District of Columbia

638 F. Supp. 963

James A. LILES, Plaintiff, v. UNITED STATES of America, et al., Defendants.

Civ. A. No. 85-2919.

United States District Court, District of Columbia.

June 30, 1986.

Joseph H. Koonz, Jr., Carolyn McKenney, Roger C. Johnson, Mark J. Brice, Koonz, McKenney & Johnson, Washington, D.C., for plaintiff.

Michael Martinez, Asst. U.S. Atty., Linda Ruiz, Business & Administrative Law Div., Dept. of Health and Human Services, Washington, D.C., for defendants.

OPINION

JUNE L. GREEN, District Judge:

This matter is before the Court on defendants' motion to dismiss or for summary judgment ("Defendants' Motion to Dismiss"), plaintiff's opposition thereto, defendants' reply brief, and the entire record herein. For the reasons given below, the Court grants defendants' motion to dismiss.

I. Background

Plaintiff Liles was employed as a Smithsonian Institution security guard from August 1976 to September 1977 and again from July 1979 to September 1982. At approximately 2:35 p.m., on August 3, 1982, Mrs. Mary Vorhies complained to Capt. James W. Greer that her 10-year-old sister, Dawn Herrington, had been sexually molested by a security guard during her visit to the National Museum of American Art ("NMAA"). Defendants' Motion to Dismiss, Exhibit 1 ("Exhibit 1") at 1. The child explained,

that while she was touring the building alone she had been approached by a Guard on the second floor of NMAA, on the northeast side of the museum, who questioned her if she was alone, or with some relatives visiting the museum. She replied she was by herself. While looking thru Gallery 2-K on the second floor, northeast side of NMAA, the Guard asked Miss Herrington if she would like to see the inside of a locked room in the Gallery, at which time the Guard opened the wire closet door.

Miss Herrington stated she only looked into the room from the doorway, and observed a liquor bottle and a can of Pepsi Cola sitting on a table, but did not enter into the room.

At this point Miss Herrington stated the Guard felt parts of her body with his hands. When this occurred she stated that she backed away and left the area, came to the first floor and called her sister, Mrs. Mary Vochies sic.

Id. at 1-2.

Capt. Greer contacted other security and investigative personnel in the Smithsonian after receiving the complaint. An investigation was initiated which confirmed Ms. Herrington's description of the inside of the locked closet. The investigation also determined that plaintiff was one of two officers on duty in Gallery 2-K of the museum at the time of the incident. Assignment records indicated that officers Walter Shepherd and plaintiff were assigned to that particular room. However, the victim stated that Officer Shepherd was "not the person but that she had seen Shepherd talking to her molester." Defendants' Motion to Dismiss, Exhibit 3 ("Exhibit 3") at 1.

A line-up was then arranged with three black officers including plaintiff. Ms. Herrington positively identified plaintiff as her molester. She had described her molester as "a black man wearing a uniform" who "wore sunglasses, was of medium height and build and had a moustache." Exhibit 3 at 1. At that point, the Metropolitan Police Department was summoned and they arrested plaintiff. Plaintiff was charged with committing a felony, "Indecent acts with children," in violation of section 3501(a) of Title 22, D.C. Code.¹ The Smithsonian placed him on administrative leave pending further investigation and a judicial determination.

A preliminary hearing was held before Superior Court Judge Carlisle Pratt on August 17, 1982. Subsequently, plaintiff was indicted by a grand jury on November 3, 1982, and charged with a violation of section 3501(a). Following a trial in April 1984, plaintiff was acquitted on April 12, 1984.

Shortly after being placed on administrative leave, the Smithsonian proposed that plaintiff be suspended and removed from his position in the federal service. The proposal explained to plaintiff that

as a Museum Protection Officer, one of his responsibilities was to enforce law and order and to convey an image of trust and safety. Actions such as the described molestation incident betrayed this image and could not be tolerated. In addition his actions were prejudicial to the image and reputation of the Smithsonian and the U.S. Government.

Defendants' Motion to Dismiss, Exhibit 8 ("Exhibit 8") at 1. The Smithsonian notified plaintiff of the proposed suspension and removal and offered him a chance to comment. He never replied.

Plaintiff was removed effective September 13, 1982. The letter of removal notified him that he had 20 days to appeal to the Merit Systems Protection Board ("MSPB"). Defendants' Motion to Dismiss, Exhibit 9 ("Exhibit 9") at 1. Plaintiff never appealed his suspension or removal to the MSPB.

Subsequently, plaintiff filed an administrative claim under the Federal Tort Claims Act ("FTCA") with the Smithsonian on October 26, 1984. Defendants' Motion to Dismiss, Exhibit 10 ("Exhibit 10"). The claim sought $500,000 for false arrest and malicious prosecution. He alleged violation of both common law and constitutional rights. Exhibit 10. The claim stated that "this arrest and prosecution were legally and proximately related to the claimant's prior legal and justified complaints against the Smithsonian Institution while employed there." Id.

The Smithsonian denied plaintiff's claim on two grounds. First, the Smithsonian stated that plaintiff "was briefly detained by Smithsonian personnel on August 3, 1982, only after a reasonable basis for suspecting him of committing a criminal offense had been established." Defendants' Motion to Dismiss, Exhibit 11. Moreover, plaintiff was arrested by Metropolitan Police Department officers and prosecuted by the U.S. Attorney for the District of Columbia. The Smithsonian took the position that since neither of these persons was an agent of the Smithsonian Institution there was no evidence of negligence on the part of the Smithsonian. Id. Second, the Smithsonian asserted that "any acts allegedly taken by Smithsonian personnel occurred more than two years prior to the filing of this claim," id., and plaintiff's administrative claim failed to meet the statute of limitations provided by the FTCA.

Plaintiff filed no other administrative claim regarding this action or the events that occurred relative to this action. He filed the instant action on September 13, 1985. Plaintiff named the United States of America/Smithsonian Institution and Howard Toy, Director of Personnel at the Smithsonian, as defendants.

Defendants have now moved for dismissal of this action or alternatively, for summary judgment. They contend (1) that this Court lacks jurisdiction over the complaint since plaintiff did not timely file an administrative claim and thus failed to exhaust his administrative remedies; (2) that even if the Court had jurisdiction over the tort claims, the first three counts of this action should be dismissed since there was probable cause for the arrest and subsequent imprisonment and prosecution of the plaintiff; (3) that plaintiff's constitutional claims are barred by the Supreme Court's holding in Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983); (4) that plaintiff has failed to state a valid claim for any constitutional tort; and (5) that defendant Toy is entitled to either absolute or qualified immunity from plaintiff's claims. Because the Court finds that it does not have jurisdiction over this matter for the reasons given below, it will restrict its discussion to the jurisdictional questions.

II. Discussion

A. Federal Tort Claims Act Claims

It is well settled law that the United States may not be sued without its consent. This consent must take the form of an express waiver of sovereign immunity. Block v. North Dakota, 461 U.S. 273, 280, 103 S.Ct. 1811, 1816, 75 L.Ed.2d 840 (1983); Jayvee Brand, Inc. v. United States, 721 F.2d 385, 388 (D.C.Cir.1983); 14 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3654, at 186 (1985). The Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq., is a limited waiver of the government's sovereign immunity. In general, the FTCA "waives immunity, allowing the government to be liable in tort for negligent or wrongful acts committed by a government employee acting within the scope of his employment when a private person would be liable for those acts under applicable law." Jayvee Brand, Inc. v. United States, 721 F.2d at 388. However, "the terms of the government's consent as specified by Congress define the court's jurisdiction to entertain a suit." United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d 607 (1980) (quoting United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941)).

Section 2401(b) contains the statute of limitation for the FTCA. This section provides that,

a tort against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.

28 U.S.C. § 2401(b) (emphasis added).

A claimant must meet two jurisdictional hurdles under this section. Schuler v. United States, 628 F.2d 199, 201-02 (D.C. Cir.1980) (en banc) (per curiam); Dyniewicz v. United States, 742 F.2d 484, 485 (9th Cir.1984); Willis v. United States, 719 F.2d 608, 610-13 (2d Cir.1983). "A claim must be filed with the agency within two years of the claim's accrual, and the claimant must file suit within six months of administrative denial of the claim. If either requirement is not met, suit will be time barred." Dyniewicz v. United States, 742 F.2d at 485 (emphasis added).

Defendants contend that the Court lacks jurisdiction over plaintiff's claim of false...