Wilson v. U.S., 652
| Decision Date | 17 March 1992 |
| Docket Number | No. 652,D,652 |
| Citation | 959 F.2d 12 |
| Parties | Lawrence WILSON, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. ocket 91-2391. |
| Court | U.S. Court of Appeals — Second Circuit |
Lawrence D. Wilson, pro se.
Sarah H. Thomas, Sp. Asst. U.S. Atty., New York City (Otto G. Obermaier, U.S. Atty., S.D.N.Y., Thomas A. Zaccaro, Asst. U.S. Atty.), for defendant-appellee.
Before PRATT and MINER, Circuit Judges. *
Plaintiff-appellant Lawrence Wilson appeals from a summary judgment entered in the United States District Court for the Southern District of New York (Sprizzo, J.) dismissing his claim under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671 et seq., for the allegedly tortious conduct of government employees in relation to the supervision and revocation of his parole. Wilson claims that various persons charged with supervising his parole acted in a fashion that caused him to close his business and suffer mental stress. He also alleges that revocation of his parole was initiated to harass him because parole officers disapproved of his business dealings. Wilson states that the proceedings leading up to and resulting in the revocation of his parole constituted abuse of process, malicious prosecution, and false imprisonment.
The district court granted the government's motion for summary judgment on the grounds that two exceptions to the FTCA waiver of sovereign immunity barred the claims. First, the district court held that the alleged torts involving the supervision and revocation of parole were barred by the discretionary function exception to the FTCA, 28 U.S.C. § 2680(a). Second, the court found that the remaining claims for false imprisonment, abuse of process, and malicious prosecution fell within the intentional tort exception to the FTCA, id. at § 2680(h). Wilson now challenges part of the ruling, contending that the intentional tort exception does not apply because the actions involved law enforcement personnel. According to the statute, the intentional tort exception does not apply to the conduct of law enforcement personnel. For the reasons set forth below, we affirm the judgment of the district court dismissing the complaint.
Wilson was convicted in 1980 of interstate transportation of stolen money and mail fraud. The district court sentenced him to imprisonment for a term of nine years. In May 1982, the United States Parole Commission ("USPC" or the "Commission") released Wilson on parole in a "close supervision" category. Parole Officer Victor Zaccheo was assigned to monitor Wilson's release, a task that included regular visits to Wilson's place of employment. Wilson and Zaccheo experienced personality difficulties from the beginning, leading to oversight of their relationship by Zaccheo's In August 1983, Zaccheo and several other parole officers requested an FBI and grand jury investigation of Wilson for fraud, making false statements to a government agency, and filing false monthly supervision reports. The investigation found no wrongdoing on the part of Wilson. Nonetheless, Zaccheo recommended extending Wilson's parole term.
supervisor. The friction between Wilson and Zaccheo apparently continued, with Zaccheo accusing Wilson of deriving income from illegal activity. Wilson alleges that in the course of Zaccheo's supervisory visits, Zaccheo often informed Wilson's clients of Wilson's parolee status with the purpose of embarrassing Wilson. Wilson further claims that Zaccheo acted in a discourteous manner towards Wilson and Wilson's clients, causing Wilson emotional distress and loss of business
Stephen Rackmill replaced Zaccheo in May 1985 as Wilson's parole officer. Rackmill demanded that Wilson immediately cease employment as a financial consultant, but Wilson refused. Rackmill attempted to have the USPC modify the terms of Wilson's parole to bar certain business activities. The Commission did not modify Wilson's parole, but did require Wilson to produce any financial records requested by Rackmill. Wilson alleges that Rackmill also continued the harassment begun by Zaccheo, and thereby caused Wilson to close his business. Wilson then sought a transfer of his parole supervision to Philadelphia, Pennsylvania, where he proposed to reside. The Regional Commissioner denied the request.
Afterwards, in January 1986, the USPC, pursuant to Rackmill's suggestion, issued an arrest warrant for Wilson for violating the terms of his parole. After Wilson's arrest, a panel of the Parole Commission held a revocation hearing, resulting in Wilson's reincarceration. Wilson successfully petitioned for habeas corpus in Texas, where he was then confined, and a new hearing was ordered before a "neutral and detached" Parole Commission hearing officer. The second hearing also resulted in Wilson's incarceration, and he again petitioned for habeas relief. Before the petition could be acted on, Wilson was released from custody. The district court therefore dismissed the petition as moot, but granted Wilson permission to file a second amended complaint to assert the FTCA claims at issue here. The government moved for summary judgment after taking Wilson's deposition. The motion was granted. Wilson timely appealed.
DISCUSSION
On appeal, Wilson does not dispute the district court's dismissal, based on the discretionary function exception to the FTCA, of the causes of action relating to the supervision and revocation of his parole. He claims, however, that the district court erred in finding that the intentional tort exception barred the claims for false imprisonment, abuse of process, and malicious prosecution. Consequently, we address only that issue.
The government is entitled to invoke sovereign immunity with respect to claims asserted against the United States. Lehman v. Nakshian, 453 U.S. 156, 160, 101 S.Ct. 2698, 2701, 69 L.Ed.2d 548 (1981); Akutowicz v. United States, 859 F.2d 1122, 1125 (2d Cir.1988). Congress has chosen to waive immunity as to certain claims against the United States by creating the FTCA. 28 U.S.C. §§ 1346(b), 2671 et seq.; see Lambertson v. United States, 528 F.2d 441, 443 (2d Cir.), cert. denied, 426 U.S. 921, 96 S.Ct. 2627, 49 L.Ed.2d 374 (1976). The waiver is not absolute. Rather, the FTCA specifically defines the limited causes of action that may be maintained against the federal government. A list of exceptions further narrows the availability of claims that may be asserted against the United States. 28 U.S.C. § 2680. Section 2680(h), commonly known as the intentional tort exception, bars all claims "arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights." Id. at § 2680(h) (emphasis added). By its terms, however, the exception does not apply to the "acts or omissions of investigative The district court, relying on the statute authorizing the parole process, found that parole officers lack any of the powers belonging to investigative or law enforcement personnel. Wilson disputes this finding, asserting first that parole officers have the power to make arrests and seize evidence, and second that because persons serving as parole officers also serve as probation officers, they have the probation officers' power to make arrests, regardless of the function ...
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