McCloskey v. Mueller, No. CIV.A.04-CV-11015.

• Decision Date: 06 September 2005
• Docket Number: No. CIV.A.04-CV-11015.
• Citation: 385 F.Supp.2d 74
• Parties: Thomas S. McCLOSKEY and Kevin P. McCloskey, Plaintiffs v. Robert S. MUELLER, III, Director of the Federal Bureau of Investigation; The Federal Bureau of Investigation; William H. Anderson, Individually and as an employee of the Federal Bureau of Investigation; The United States of America; and Gary Lee Sampson, Defendants
• Court: U.S. District Court — District of Massachusetts

385 F.Supp.2d 74

Thomas S. McCLOSKEY and Kevin P. McCloskey, Plaintiffs v. Robert S. MUELLER, III, Director of the Federal Bureau of Investigation; The Federal Bureau of Investigation; William H. Anderson, Individually and as an employee of the Federal Bureau of Investigation; The United States of America; and Gary Lee Sampson, Defendants

No. CIV.A.04-CV-11015.

United States District Court, D. Massachusetts.

September 6, 2005.

Kevin J. Reddington, Law Offices of Kevin J. Reddington, Brockton, for Kevin P. McCloskey, Thomas S McCloskey, Plaintiffs.

Carol L. Shea, Office of the U.S. Attorney, Burlington, VT, for The Federal Bureau of Investigation, The United States of America, Robert S Mueller III, William H. Anderson, Defendants.

MEMORANDUM AND ORDER ON THE FEDERAL DEFENDANTS' MOTION TO DISMISS AND ON SAMPSON'S MOTION TO DISMISS AND TO APPOINT COUNSEL

LINDSAY, District Judge.

Before me is a motion of Robert S. Mueller, III ("Mueller"), in his capacity as Director of the Federal Bureau of Investigation (the "FBI"); the FBI; William H. Anderson ("Anderson"), in his capacity as an employee of the FBI; and the United States of America (collectively the "Federal Defendants")¹ to dismiss the complaint filed against them by Thomas S. McCloskey and Kevin P. McCloskey (collectively "the Plaintiffs"). The defendant, Gary Lee Sampson ("Sampson") has filed a separate motion to dismiss all claims against him and for the appointment of counsel to represent him in this matter.

I. Background

A. Factual Background

The complaint, as amended, makes the following allegations.

On July 23, 2001, Anderson, who worked as a personnel security specialist at the Boston office of the FBI, covered the switchboard of the Boston office during lunch. Anderson took a call from Sampson, who identified himself and told Anderson that he "was a fugitive, wanted for several bank robberies and that he was in the town of Abington [Massachusetts] and wanted the [FBI] to come and take him into custody." (Am.Compl.¶ 15). Anderson disconnected the call; Sampson did not call back. (Am.Compl.¶¶ 16, 24). Anderson neither reported the call to an agent or a supervisor, nor took steps to trace or track the call. (Am.Compl.¶¶ 25, 26). Either the equipment Anderson was using did not permit him to track and trace the call, or Anderson was not properly trained in the use of the equipment. The FBI did not supervise Anderson or regularly monitor or scrutinize records. (Am.Compl.¶ 26).

On July 24, 2001, Sampson car-jacked Philip McCloskey ("McCloskey") and murdered him. Before being apprehended on July 31, 2001, in Vermont, Sampson also murdered two other persons. (Am.Compl.¶ 13). After he was arrested, Sampson reported that he called the FBI's Boston office on July 23, 2001, seeking to surrender himself to the FBI. (Am.Compl.¶ 14). Sampson, who was tried and received the death penalty for the murder of McCloskey, is currently an inmate in the care, custody, and control of the Federal Bureau of Prisons. (Am.Comp.¶ 8)

B. Procedural Background

The Plaintiffs, who are the executors of the estate of McCloskey, have sued Sampson and the Federal Defendants. They seek compensatory and punitive damages, together with costs and expenses. The ten-count complaint contains six counts against the Federal Defendants and four counts against Sampson. Counts I and II assert a negligence claim under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-80 (the "FTCA"), and a civil rights claim under 42 U.S.C. § 1983 ("Section 1983"), respectively. Both claims are based on Anderson's conduct in disconnecting Sampson's call and failing subsequently to trace, track, or report the call to his supervisors to ensure Sampson's capture. (Am.Compl.¶¶ 29-37). Count III alleges that the Federal Defendants violated McCloskey's civil rights under Section 1983 by their "clear indifference and pattern of deliberate indifference coupled with inadequate training, supervision and use of inadequate technology." (Am.Com pl.¶¶ 38-40). Counts IV and V set forth state law negligence claims and seek compensatory damages and damages against the Federal Defendants for McCloskey's conscious pain and suffering. (Am.Compl.¶¶ 41-51). Count VI asserts a state law claim for punitive damages against the Federal Defendants. (Am.Compl.¶¶ 52-56). Counts VII, VIII, IX, and X assert Massachusetts state law claims against Sampson for McCloskey's wrongful death and conscious pain and suffering and for punitive damages.

II. Discussion

For the purposes of a Rule 12(b)(6) motion to dismiss, the court must "accept as true the well-pleaded factual allegations of the complaint, draw all reasonable inferences therefrom in the plaintiff's favor and determine whether the complaint, so read sets forth facts sufficient to justify recovery on any cognizable theory." Giuliano v. Fulton, 399 F.3d 381, 386 (1st Cir.2005) (quoting Martin v. Applied Cellular Tech., 284 F.3d 1, 6 (1st Cir.2002)).

A. The tort claims against the Federal Defendants (counts I, IV, V, and VI)

Citing Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985), the Federal Defendants explain that the Plaintiffs' claims against federal agencies or federal employees, acting in their official capacities, are in reality claims against the United States. This assertion of the Federal Defendants is not entirely correct, as applied to the amended complaint in this case. The Graham case stands for the proposition that official-capacity suits must be treated as suits against the federal entity. 473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114. Therefore, a suit against Mueller and Anderson in their respective official capacities is to be treated as a suit against the FBI, but the suit against the FBI itself will not be treated as a suit against the United States. Id.

Citing Bennett v. Federal Bureau of Investigation, 278 F.Supp.2d 104, 121 (D.Mass.2003), the Federal Defendants point out that the FTCA expressly prohibits lawsuits against individual federal agencies like the FBI. Citing 28 U.S.C. § 2679(d) and 28 C.F .R. § 15.3, they further explain that where, as here, the Attorney General has certified that individual federal employees (Mueller and Anderson), sued in their official capacity, acted within the scope of their employment at all relevant times, the United States must be substituted as the party defendant in their stead.² The Federal Defendants point out that, because the United States is already a named defendant in this case, no substitution is required, and that the court should dismiss all counts directed against Mueller, Anderson, and the FBI.

a. Claims against Mueller and Anderson

I dismiss counts I, IV, V, and VI, to the extent that they set forth claims against Mueller and Anderson. The FTCA, 28 U.S.C. § 2679(b)(1) provides that "[t]he remedy against the United States provided by [28 U.S.C. §§ 1346(b) and 2672] for ... personal injury or death arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment is exclusive of any other civil action or proceeding for money damages by reason of the same subject matter against the employee whose act or omission gave rise to the claim or against the estate of such employee" (emphasis added). Section 2679(b)(1) further provides that "[a]ny other civil action or proceeding for money damages arising out of or relating to the same subject matter against the employee ... is precluded without regard to when the act or omission occurred." Bennett, 278 F.Supp.2d at 121 (explaining that the FTCA provides jurisdiction for claims brought "against the United States"). Accordingly, the Plaintiffs' claims against Anderson and Mueller set forth in counts I, IV, V, and VI, are dismissed.

b. Claims against the FBI

I also dismiss counts I, IV, V, and VI, to the extent that they set forth claims against the FBI.³ The FTCA makes it clear that individual agencies of the United States may not be sued in tort for personal injuries or death caused by "the negligent or wrongful act or omission" of any federal employee acting within the scope of his or her employment. 28 U.S.C. § 1346(b); see Allen v. Veterans Admin., 749 F.2d 1386, 1388 (9th Cir.1984) (citing Evans v. United States Veterans Admin. Hospital, 391 F.2d 261, 262 (2d Cir.1968) (per curiam), cert. denied, 393 U.S. 1040, 89 S.Ct. 667, 21 L.Ed.2d 589 (1969)); see also Bennett, 278 F.Supp.2d at 121 (explaining that the FTCA "does not permit tort actions to be brought against federal agencies"; concluding that "no claim cognizable under [28 U.S.C. § 1346(b)] may be brought against the relevant federal agency in its own name"). As in Bennett, the Plaintiffs' action is cognizable under the FTCA because the complaint in this case "asserts all the required elements — the claim is one for wrongful death under Massachusetts state law, arising from actions taken by an FBI employee within the scope of his employment and seeking money damages against the United States." 278 F.Supp.2d at 121. Consequently, the FTCA "remedy [against the United States] is the exclusive remedy, and the FBI is not a proper defendant" on counts I, IV, V, and VI. Id. (dismissing the FTCA claims against the FBI for lack of subject matter jurisdiction).

c. Claims against the United States — the discretionary function exception

The United States may be sued only if it has consented to be sued. Lehman v. Nakshian, 453 U.S. 156, 160, 101 S.Ct. 2698, 69 L.Ed.2d 548 (1981) (explaining that "the United States, as sovereign, `is immune from suit save as it consents to be sued ... and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit'" [citation omitted]); see United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976); United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941); see also United...