Liuzzo v. United States, Civ. A. No. 79-72564.

• Decision Date: 25 February 1981
• Docket Number: Civ. A. No. 79-72564.
• Citation: 508 F. Supp. 923
• Parties: Anthony LIUZZO, Jr., et al., Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Western District of Michigan

508 F. Supp. 923

Anthony LIUZZO, Jr., et al., Plaintiffs, v. UNITED STATES of America, Defendant.

Civ. A. No. 79-72564.

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

February 25, 1981.

COPYRIGHT MATERIAL OMITTED

Jack D. Novik, American Civil Liberties Foundation, New York City, for plaintiffs.

L. Michael Wicks, Asst. U. S. Atty., Detroit, Mich., John J. Farley, Asst. Director, Mark J. Kurzmann, Trial Atty., U. S. Dept. of Justice, Torts Branch, Civil Division, Washington, D. C., for defendant.

MEMORANDUM OPINION AND ORDER

JOINER, District Judge.

This case is before the court on three motions: defendant's motion to dismiss; plaintiffs' motion to amend the complaint; and plaintiffs' motion to compel. In this suit, plaintiffs seek damages from the United States for the death of their mother, Viola Liuzzo, a civil rights worker who was murdered in 1965.

The facts of this case are reported in detail in an earlier opinion of this court, Liuzzo v. United States, 485 F.Supp. 1274 (E.D.Mich.1980). Plaintiffs allege that the government, through the Federal Bureau of Investigation, was responsible for their mother's death, and that certain agents mishandled and abused their mother's body after her death. These allegations are discussed in detail below.

Defendant's motion to dismiss is based on F.R.C.P. 12(b)(1) and (6), and asserts that the court lacks subject matter jurisdiction to entertain this action and that plaintiffs' complaint fails to state a claim on which relief can be granted. Following the hearing on the motion to dismiss, plaintiffs moved to amend their complaint. The court indicated to the parties at that time that both motions would be decided together, and that oral argument on the motion to amend would not be entertained. Finally, plaintiffs have moved to compel the production of the "Rowe Task Force Report" under F.R.C.P. 37. Production of the report has been resisted by defendant on the basis of privilege.

I. Motion to Amend Complaint

Turning first to the motion to amend the complaint, the court notes that the amended complaint does not differ substantially in legal theory from the complaint originally filed, and supplements factual allegations contained in the original complaint. Defendant opposes this motion, asserting that plaintiffs have delayed in presenting it to the court, and that defendant will be prejudiced if the court allows the amended complaint. Precisely how the government will be prejudiced, however, is not explained. Defendant further argues that the amended complaint should not be allowed because it cannot survive the motion to dismiss.

In view of the lack of demonstrated prejudice to defendant, the court believes that the amended complaint should be allowed. Defendant's arguments in support of its motion to dismiss are readily transferable to the amended complaint and are, in fact, reiterated by defendant in its brief opposing the motion to amend. Allowance of the amended complaint, moreover, is in furtherance of the liberal policy of Rule 15. Accordingly, plaintiffs' motion to amend is granted.

II. Motion to Dismiss

Plaintiffs seek damages in this case for the death of their mother in 1965. In March of that year, Viola Liuzzo traveled to Alabama to participate in the Selma-Montgomery voting rights march. While traveling between the two cities, her car was overtaken by a car occupied by members of the Ku Klux Klan. Shots were fired at Mrs. Liuzzo and she died of the injuries sustained. One of the occupants of the Klan car was Gary Thomas Rowe, an F.B.I. informant.

Plaintiffs allege that the F.B.I. recruited Rowe as an informant in the Klan, and that the F.B.I. exercised direct, continuous, and complete control over Rowe while he performed his duties as a Klan informant. They further allege that Rowe was paid for his services, and at all times acted within the scope of his authority under instruction and supervision given by the F.B.I. According to plaintiffs, the F.B.I. agents who recruited Rowe knew or should have known that he lacked the necessary stability and responsibility required by F.B.I. policy. It is further alleged that Rowe's control agents failed to provide the necessary training and supervision to insure that Rowe performed his duties lawfully and responsibly. Moreover, plaintiffs allege that Rowe's control agents knew of and negligently and wrongfully authorized Rowe to participate in and provoke violent and illegal acts. Plaintiffs further allege that Rowe's control agent wrongfully and negligently authorized Rowe to participate in the activities which culminated in Mrs. Liuzzo's death, regardless of the fact that the agent knew or should have known that violent and illegal acts would occur. Plaintiffs set forth six claims based on these allegations:

a. The negligent and wrongful acts of Rowe and Rowe's FBI control agents, acting in violation of FBI policy and state and federal law, caused the murder of Viola Liuzzo by the KKK, and said negligent and wrongful acts were the proximate cause of Viola Liuzzo's death and plaintiffs' injuries;

b. Rowe negligently and wrongfully failed to prevent the murder of Viola Liuzzo, in violation of FBI policy and state and federal law, and said acts or omissions were the proximate cause of Viola Liuzzo's death and plaintiffs' injuries;

c. Rowe's FBI control agents negligently and wrongfully recruited, trained and supervised Rowe in violation of FBI policy and state and federal law, and said negligent and wrongful acts or omissions were the proximate cause of Viola Liuzzo's murder and plaintiffs' injuries;

d. Rowe's FBI control agents negligently and wrongfully authorized Rowe to participate in illegal activities, in violation of FBI policy and state and federal law, and said acts or omissions were the proximate cause of Viola Liuzzo's death and plaintiffs' injuries;

e. Rowe's FBI control agents, having knowledge (i) that Rowe had a long history of provoking and participating in KKK violence and lawlessness, (ii) that such violence and lawlessness was reasonably likely to occur on March 25, 1965, (iii) that the reasonably likely consequences of such violence and lawlessness would be serious injuries inflicted on the victims thereof, and (iv) that the FBI could have prevented such injuries, negligently and wrongfully failed to prevent Viola Liuzzo's murder, in violation of FBI policy and state and federal law, and said negligent and wrongful acts or omissions were the proximate cause of Viola Liuzzo's death and plaintiff's injuries;

f. Subsequent to her death on March 25, 1965, FBI agent negligently and wrongfully mishandled and abused Viola Liuzzo's body and such acts caused injuries to plaintiffs, including emotional distress and mental anguish.

Amended Complaint, paragraph 18.

Plaintiffs have filed this suit against the United States pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2401(b), 2671 et seq. By enacting this legislation, Congress has waived sovereign immunity for certain types of actions. In its motion to dismiss, the government argues that plaintiffs' claims¹ are not actionable under the FTCA because Congress has not waived immunity for these types of actions, and that absent a waiver of sovereign immunity, the court lacks jurisdiction to entertain this suit. Additionally, the government argues that plaintiffs have failed to state a claim on which relief can be granted, and seeks dismissal under F.R.C.P. 12(b)(6). The court will first discuss the jurisdictional issues, and then assess whether the complaint states a claim for which relief can be granted.

A. Jurisdiction under the Federal Tort Claims Act

Section 1346(b) of Title 28 provides:

Subject to the provisions of Chapter 171 of this title 28 U.S.C. §§ 2671 et seq. the district courts ... shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, ... for injury or loss of property, or 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.

This section's waiver of sovereign immunity and provision for jurisdiction of actions against the United States does not apply to every type of claim. Section 2680 of Title 28 specifically excepts certain claims from the application of § 1346(b). The government relies on two of the exceptions to the waiver of sovereign immunity, the assault and battery exception and the discretionary function exception, § 2680(h) and (a) respectively.

1. The Assault and Battery Exception

Subsection (h) of § 2680 provides for an exception to the general waiver of sovereign immunity in § 1346(b) for:

Any claim arising out of assault, battery ...: Provided, That, with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter and § 1346(b) of this title shall apply to any claim arising, on or after the date of the enactment of this proviso, out of assault, battery

. . . . .

Defendant argues, based on this provision, that plaintiffs' claims arise out of the assault and battery of Mrs. Liuzzo and are thus barred. According to defendant, artful, skilled, and innovative pleading cannot alter the character of this case from one "arising out of" an assault and battery to one sounding in negligence. Moreover, defendant argues that the proviso to subsection (h) does not apply to plaintiffs' claims because Rowe was not an "investigative or law enforcement officer" within the meaning of the proviso.

At the outset, it is clear that, to the extent that the assault and battery exception to the general waiver of sovereign immunity applies to plaintiffs' claims in this case, plaintiffs derive no benefit...