Williams v. United States

• Decision Date: 14 January 1969
• Docket Number: No. 22043.,22043.
• Citation: 405 F.2d 951
• Parties: Jewell James WILLIAMS, Appellant, v. UNITED STATES of America; Frank Gibson, Henry A. Boney, Robert C. Dent, De Graff Austin, Robert C. Cozens, as members of the Board of Supervisors of San Diego County, State of California; Joseph C. O'Connor, Sheriff of San Diego County, State of California; County of San Diego, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

405 F.2d 951 (1969)

Jewell James WILLIAMS, Appellant, v. UNITED STATES of America; Frank Gibson, Henry A. Boney, Robert C. Dent, De Graff Austin, Robert C. Cozens, as members of the Board of Supervisors of San Diego County, State of California; Joseph C. O'Connor, Sheriff of San Diego County, State of California; County of San Diego, Appellees.

No. 22043.

United States Court of Appeals Ninth Circuit.

January 14, 1969.

Jack A. Dahlstrum (argued), of Dahlstrum, Walton & Butts, Hollywood, Cal., for appellant.

Laurence Pillsbury (argued), of McInnis, Focht & Fitzgerald, San Diego, Cal., for appellees.

Edwin L. Weisl, Jr., Asst. Atty. Gen., John C. Eldridge, Robert V. Zener, Dept. of Justice, Washington, D. C., Edwin L. Miller, U. S. Atty., Bertram McLees, Jr., County Counsel of San Diego County, Lloyd M. Harmon, Jr., Deputy County Counsel, San Diego, Cal., amicus curiae for appellees.

Before BARNES and ELY, Circuit Judges, and FERGUSON,^* District Judge.

BARNES, Circuit Judge:

On May 16, 1966, appellant, Jewell James Williams, filed a "First Amended Complaint" against the United States of America, five named individuals — as members of the Board of Supervisors of San Diego County, the sheriff of San Diego County, and the County of San Diego. Said complaint prayed for damages on account of injuries suffered by appellant while a federal prisoner housed in the San Diego County Jail under the terms of a contract between the County and the United States, said contract having been authorized by the provisions of 18 U.S.C. § 4002. The complaint stated that the district court had jurisdiction under 28 U.S.C. § 1346, the provision waiving sovereign immunity in connection with suits against the United States, and also by reason of 28 U.S.C. Chapter 171, the Federal Tort Claims Act. In a separate paragraph it was alleged that all the named defendants owed plaintiff a duty under 18 U.S.C. § 4042, which section defines the duties of the Bureau of Prisons, and that each of the defendants negligently performed this duty.

Counsel for all named defendants other than the United States moved to dismiss the action on the grounds that the complaint failed to state a claim upon which relief could be granted and that the court lacked jurisdiction of these defendants. (The United States also filed a motion to dismiss, but the district court's action regarding that motion is not now before us.) On December 9, 1966, the district court granted the motion for dismissal as to all defendants except the United States, and ordered that a final judgment be entered in favor of said defendants. The reasons for the dismissal, as stated in that order and in a supplement to that order, dated January 9, 1967, were that there is no diversity, as is required for a court to have jurisdiction over the claims against individual defendants joined in a Federal Tort Claims action, and that the complaint failed to allege the filing of a claim with the County or State pursuant to the provisions of the California Government Code, which makes the filing of such a claim a condition precedent to the right to maintain a tort action against a public entity. Our review concerns the correctness of that judgment, and we have jurisdiction under 28 U.S.C. § 1291.

An initial question raised by counsel for appellees is whether San Diego County is a party to this action. The arguments made to show that the County is not a party are (1) that the County was not intentionally named as a defendant in the complaint but, rather, "merely referred to somewhat redundantly in description of the Sheriff in the caption of the complaint," and (2) that appellant's opening brief in this court omitted the County from the list of defendants named in the statement of facts. These arguments are unpersuasive. The block capitalization of "County of San Diego" in the caption of the complaint would seem to designate the County as a defendant, despite the absence of a semicolon preceding its name. The fact that counsel for appellees filed documents in the district court specifically on behalf of the County as well as the nongovernmental defendants would indicate that counsel regarded the County as a party. Moreover, in view of our decision infra, no prejudice to the County can result from its being included as a party.

In the court below, appellant maintained that assuming an independent basis of jurisdiction was necessary as to defendants Board of Supervisors, Sheriff and County, such basis existed in that there was diversity of citizenship, appellant being a resident of Missouri as of the commencement of the action. The district court ruled that appellant could not be a citizen of Missouri by virtue of the fact that he was there only because confined in prison, and that therefore there was no diversity. This ruling is not here challenged and on this appeal appellant does not contend there was diversity.

Instead, appellant claims that there was "federal question jurisdiction" as to these appellees. He offers two alternative theories. First, he asserts that the Sheriff and Supervisors, as federal employees, breached their duty to him under 18 U.S.C. § 4042, and therefore, are liable under federal law. Second, he asserts that if these appellees are not federal employees, then, as state employees they breached their duty to him under 18 U.S.C. § 4042, and are liable according to the tort law of California.

No matter which theory is relied upon, the specific allegation in appellant's complaint regarding jurisdiction is inadequate insofar as these appellees are concerned. The provision appellant relies upon (28 U.S.C. § 1346) establishes jurisdiction only over certain suits against the United States; it does not permit the joinder of other parties.

However, appellant argues that jurisdiction over the other appellees arises because this is a civil action based directly on 18 U.S.C. § 4042, "Duties of Bureau of Prisons." If facts giving the court jurisdiction are set forth in the complaint, the provision conferring jurisdiction need not be specifically pleaded. Schwarz v. United States, 191 F.2d 618 (4th Cir. 1951).

However, in the present case we find that no facts have been set forth which would cause us to conclude that jurisdiction arose under § 4042. That section provides that the Bureau of Prisons, under the direction of the Attorney General, shall provide for the safekeeping and protection of all persons charged with or convicted of offenses against the United States. It does not impose a duty on any officials who may be responsible to the Bureau of Prisons, and does not establish a civil cause of action against anyone in the event the Bureau's duty is breached. In other cases, the courts have made it clear that if the duty imposed by § 4042 is breached, the prisoner's remedy is an action against the United States, under the Federal Tort Claims Act. United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963); Cohen v. United States, 252 F.Supp. 679 (N.D.Ga.1966). Thus, if we adopt appellant's theory that the appellees herein were acting as federal employees, they cannot be held to answer in the present case. His sole right of action is against the United States.

When we consider appellant's second theory (that appellees were acting as state employees), our conclusion is similar. As stated above, the provisions of § 4042 are applicable only to the Bureau of Prisons and the Attorney General. They cannot be construed to create a cause of action against the present appellees, or confer jurisdiction over them.

Hence, whether we regard appellees as...