Ruffalo v. United States, 80-0675-CV-W-6.

• Decision Date: 29 June 1984
• Docket Number: No. 80-0675-CV-W-6.,80-0675-CV-W-6.
• Citation: 590 F. Supp. 706
• Parties: Donna RUFFALO, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Western District of Missouri

590 F. Supp. 706

Donna RUFFALO, Plaintiff, v. UNITED STATES of America, Defendant.

No. 80-0675-CV-W-6.

United States District Court, W.D. Missouri, W.D.

June 29, 1984.

Sanford P. Krigel and Erlene W. Krigel, Krigel & Krigel, Kansas City, Mo., for plaintiff.

A. Mary Sterling, Asst. U.S. Atty., Kansas City, Mo., for defendant.

MEMORANDUM AND ORDER

SACHS, District Judge.

This much-discussed case¹ has now been tried to the court on the issue of damages. Plaintiff Donna Ruffalo's former husband, Michael Ruffalo, is a witness for the Strike Force who was taken into the Witness Protection Program (WPP) in November, 1978. Included in the program at the request of the father was Michael Ruffalo, Jr. (Mike), then 9 and now 14 years of age. Before entering the program, Mike had been in Mrs. Ruffalo's legal custody, but was simultaneously in the "possession" of his father, under a state court order based on a written agreement. Pursuant to the agreement, Mrs. Ruffalo had "reasonable visitation rights" and weekend "possession" for one day. P.Exh. 26. She generally saw Mike before and after school prior to his unannounced disappearance. After a period of great alarm, Mrs. Ruffalo was eventually advised by a Marshals Service official in Washington that the boy and his father were in the program. She thereafter had no word from Mike for almost four years. Telephone communication began in 1983, about the time of a court of appeals decision containing favorable analysis of her claims. In the meantime she had acquired full custody in a state court proceeding, and Michael Ruffalo was ruled in contempt of that court.

This litigation has been subject to several false starts. Acting under directions from the court of appeals, this court in May, 1983, held a hearing and ruled that Mrs. Ruffalo should not reacquire physical custody of Mike, but would be confined to limited visitation rights arranged by the Marshals Service, and would be entitled to frequent telephone calls. The court interposed its order, effectively modifying those of the state court, because there was proof of significant danger to the boy if he were placed in his mother's custody. The court also ruled that she was equitably barred from full injunctive relief because of her misconduct in accepting gifts from mortal enemies of Ruffalo, Sr., who viewed the litigation as a vehicle of intended homicide. Ruffalo v. Civiletti, 565 F.Supp. 34 (W.D. Mo.1983).

After discovery, clarification of the issues, and orders dismissing various parties, this damage claim went to trial under the Federal Tort Claims Act (FTCA). 28 U.S.C. § 1346(b). Under the statute, the United States is liable for personal injury (including emotional injury) caused by the negligent or wrongful act or omission of federal employees "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." Application of the statute presents novel and significant issues under both state and federal law.

The court must determine what rights have been invaded, whether there is federal responsibility, whether a damage suit could be maintained under state law for the harmful conduct, and what damages should be assessed. The findings of the court are embodied in this opinion, pursuant to Rule 52(a), F.R.Civ.Proc.

A. Scope of Lost Rights

Plaintiff asserts a claim in excess of one million dollars for federal destruction of her right to custody of Mike, denial of due process, and interference with her parental role.² A psychologist testified that her loss may be described as "disenfranchisement as a parent," with ensuing damage to her mental health. The court views the deprivations in question more narrowly, and concludes they involved a right of visitation and oral communication, which was totally denied from November, 1978, until telephone calls were made by Mike in early 1983.

The court obviously accepts the ruling of the court of appeals that there was a denial of due process. Ruffalo by Ruffalo v. Civiletti, 702 F.2d 710 (8th Cir. 1983). Mrs. Ruffalo was entitled to a prompt post-deprivation hearing of the sort ultimately held by this court in 1983. She should have been immediately notified of Mike's safety, instead of being left in uncertainty for three or four weeks. The failure of the government to provide her with a forum in late 1978 (preferably after "temporary" relocation but before "permanent" relocation — P. Exh. 1, page 4) would not, however, create a claim for compensatory damages under the Constitution, absent a loss of substantive rights. Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). Compare Owen v. Lash, 682 F.2d 648, 657-660 (7th Cir.1982). No state law claim for this type of compensatory damages has been established by plaintiff's counsel. A claimed violation of the Constitution is insufficient in itself to assert liability under the Federal Tort Claims Act. Boda v. United States, 698 F.2d 1174, 1176 (11th Cir.1983).

The previous ruling of this court justifies the loss of custody suffered in 1978. It will be assumed that a state court, on similar evidence, would have confined Mrs. Ruffalo to rights of visitation and communication. Mike's entry into the protection program was procedurally faulty but substantively proper, therefore, and Mrs. Ruffalo cannot complain of that loss, however real it may have been. She may complain, however, of deprivations exceeding those she now suffers, if traceable to negligence or wrongful federal conduct. Under current orders she is entitled to semi-annual visitation and bi-weekly telephone calls. These are the rights of which she was deprived for approximately four and one-half years.³

B. Federal Responsibility

The government strenuously denies responsibility for the deprivations of visitation and communication. It attributes these losses entirely to Michael Ruffalo for not requiring his son to contact the mother (except for one unpleasant letter to her in August, 1982). The court of appeals has ruled, however, that Michael Ruffalo, whose wishes the boy obeys, may be considered a federal actor, for purposes of discerning a constitutional violation. 702 F.2d at 717. While that alone may not render him an "employee," within the statutory terminology, this court would hesitate to create a distinction making the Federal Tort Claims Act inapplicable to Michael Ruffalo's conduct. If fine lines are to be drawn between a federal actor and a federal employee, they should be drawn by the court of appeals.

Governmental responsibility may be established, moreover, using different approaches. Marilyn Mode, assistant chief for planning and evaluation, witness security division, United States Marshals Service, testified that the Marshals Service has not required visitation or contact between children in the program and parents who are outside the program. Whether such visitation and contact occurs has been dependent on the wishes of parents and children in the program. In other words, it was optional or entirely voluntary, rather than a duty, for such persons to agree to visits. Assuming visitation rights to be mandated by state law (which the witnesses agreed was normal and which the court believes to be almost universal) this means that entry into the program, when coupled with the past method of administration, has had the effect of destroying a pre-existing legal right. Intentional interference with visitation rights may therefore be imputed to the governmental sponsor of the Witness Protection Program. A similar ruling has been made by the Court of Appeals for the District of Columbia. Franz v. United States, 707 F.2d 582, 590-4 (D.C.Cir.1983).

The only arguable justifications for such interference would appear to be (1) security of the participants; (2) financial considerations; or (3) lack of "authority" or control. Only the last factor is here developed as a defense. The evidence is clear, however, that Michael Ruffalo can easily be persuaded and accepts instructions from the Marshals Service in many respects. He travels when they want him to travel. He telephones when requested by the marshals. He testifies when needed. He instructs Mike to telephone his mother or to visit her. Such telephoning began before this court ordered the father to take such action, apparently after the defendants became concerned about the outcome of this case. Michael Ruffalo assumes significant physical risks when requested.⁴ There is no evidence that he has rejected any urgent, insistent request from the marshals. It is concluded that Michael Ruffalo was sufficiently within the practical control of the Marshals Service so that he would have acquiesced in allowing visitation and in directing his son to talk to the mother from 1978 to 1983, if urgently requested. The injury suffered is thus attributable at least in part to the conduct of the Marshals Service in administering the program. Causation has been adequately demonstrated.

At least one government agent, FBI agent Leone J. Flosi, told Michael Ruffalo he need not appear in state court because that court had "no jurisdiction." Ruffalo's attorney, paid by the government, similarly resisted jurisdiction in reopened state court proceedings in 1981. While Flosi's advice may have been motivated by concern for Ruffalo's safety, the message to Ruffalo was that he could completely disregard Donna Ruffalo's rights. Any urging to the contrary by Marshals Service personnel must have been in the nature of very mild advice, and there was no withdrawal of the prior information that Michael Ruffalo was in total control of the decision. Such power of veto, granted to the witness by the marshals, was clearly contrary to state law.

The deprivation of rights, financed by the government and fostered by federal practices and advice, was thus aided and abetted by federal employees who generally remain...