Ford v. Mitchell , 890 F. Supp. 2d 24 ( 2012 )

SUMMARY MEMORANDUM AND OPINION; NOT INTENDED FOR PUBLICATION.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
KEVIN C. FORD,
Plaintiff,
v.
Civil Action No. 10-cv-1517 (RLW)
CRANSTON MITCHELL, et. al,
Defendants.
MEMORANDUM OPINION
Plaintiff Kevin C. Ford (“Ford”) brings causes of action pursuant to 42 U.S.C. § 1983and, alternatively, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971), for unlawful seizure under the Fourth Amendment (Count I), and over detention
under the Fifth Amendment (Count II) against Defendants Bureau of Prisons (“BOP”) officials
Jane and John Does 1-2 (collectively “BOP Defendants”) in their individual capacities; the
United States Parole Commission (“USPC”) officials Cranston Mitchell, Isaac Fulwood, Helen
A. Herman, Lori Gobble, Joann L. Kelly, and Jequan S. Jackson (collectively “USPC
Defendants”) in their individual capacities; and Community Supervisor Officer Court Services
and Offender Supervision Agency for the District of Columbia (“CSOSA”) officials Saher Khan,
Jessica Stigall, and Verna Young (collectively “CSOSA Defendants”) in their individual
capacities. Ford also brings claims pursuant to the Federal Torts Claims Act (“FTCA”), 28
U.S.C. § 1346(b)(1), for negligence (Count III) against all the United States of America, and an
action for negligence per se against the BOP Defendants (Count IV) in their individual
capacities. Ford requests compensatory and punitive damages, and attorney’s fees and costs.
This matter is before the Court on Defendants’ partial Motion to Dismiss Counts I, II, and
III pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). 1 Fed. R. Civ. P. 12(b)(1),
12(b)(6). The USPC and CSOSA Defendants move to dismiss Counts I and II because they are
either absolutely immune from suit or protected by qualified immunity. The USPC and CSOSA
Defendants contend that Plaintiff’s FTCA claim in Count III should be dismissed because the
intentional tort exception, 28 U.S.C. § 2680(h), bars Ford’s negligence claims. For the following
reasons, the USPC and CSOSA Defendants’ partial Motion to Dismiss Counts I, II, and III is
granted. 2
I. BACKGROUND
On September 25, 2001, Ford was arrested and charged in the Superior Court for the
District of Columbia with distribution of heroin. Am. Compl. ¶ 27. Ford was jailed for 23 days
and then released to supervisory custody pending trial on October 17, 2001. Id. After Ford
failed to appear for his arraignment, a “no bond” bench warrant was issued and Ford was
arrested on May 6, 2002. Id. at 28. On September 17, 2002, Ford pled guilty to attempted
distribution of heroin and was sentenced to serve twelve months in prison, followed by ninety
days of supervised release. Id. at 29. This sentence was suspended to all but time already
served, and Ford was instead placed on supervised probation. Id. The first three months of
Ford’s supervised probation were to be served at a halfway house where Ford was already
located. Id. On December 17, 2002, Ford was released to the community on supervised
probation. Id. at 30. On May 22, 2003, a CSOSA employee submitted a probation violation
1
The Bureau of Prisons (“BOP”) Defendants did not move to dismiss any of the claims
asserted against them.
2
This is a summary opinion intended for the parties and those persons familiar with the
facts and arguments set forth in the pleadings; not intended for publication in the official
reporters.
2
report to the Superior Court alleging that Ford had violated the terms of his supervised probation.
Id. at 31. Ultimately, a bench warrant was executed on July 7, 2003, and Ford was held in the
custody of the District of Columbia Jail until the disposition of his probation violation charges.
Id. At his disposition hearing on July 24, 2003, the court reinstated Ford’s original sentence of
one year in jail with credit for time served and three months of supervised release. Id. at 32. On
December 17, 2003, Ford was released from imprisonment and began serving his three months
of supervised release. Id. at 32.
On February 17, 2004, Defendant Helen Herman requested a warrant be issued for Ford’s
arrest based on allegations that he had violated the terms of his supervised release. Id. at 34, 46.
The USPC issued a warrant signed by Defendant Mitchell on February 17, 2004, and Ford was
arrested on July 26, 2004. Id. Ford agreed to a consent disposition with the USPC and was
sentenced to a new twelve-month term of imprisonment, followed by a 48-month period of
supervised release. Id.On February 1, 2006, Defendant Jackson requested a warrant based on Ford’s violation
of the conditions of his supervision. Id. at 50. That warrant was executed and Ford was taken
into custody on August 17, 2006. Id. at 35. Ford agreed to another consent disposition and was
sentenced to a new term of twelve months in prison, followed by thirty-six months of supervised
release. Id. Upon release from imprisonment on August 10, 2007, Ford began serving his thirty-
six months of supervised release. Id. at 37.
On June 29, 2007, Ford filed a pro se petition for a writ of habeas corpus challenging the
calculation of his sentence and supervised release on the grounds that he did not receive credit
for all the time he had served prior to his incarceration in July 2003. See Ford v. Caulfield, 652
F. Supp. 2d 14 (D.D.C. 2009). The court determined that Ford should have received credit for
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the period between his arrest on July 7, 2003 through the Superior Court’s disposition on July 24,
2003. Id. at 19. The court further determined that Ford’s term of imprisonment expired before
he was actually released and, consequently, Ford’s term of supervised release ended prior to the
issuance of the February 17, 2004 arrest warrant. Id. at 20. The court granted Ford’s habeas
petition and released him from supervised release, concluding that “the Commission’s February
17, 2004 arrest warrant was void, and that neither Ford’s arrest on July 26, 2004 pursuant to the
Commission’s warrant nor anything that flowed from that arrest was duly authorized by law.” Id.
at 22.
Ford’s lawsuit alleges that several USPC and CSOSA employees, whose alleged acts led
to the issuance and execution of February 17, 2004 warrant and the subsequent periods of
detention and supervised release that flowed from his July 26, 2004 arrest, violated his rights
under the Fourth and Fifth Amendments. Ford also raises tort claims under the FTCA against
the United States by charging employees of BOP, USPC, and CSOSA with negligence. Ford
seeks damages from the USPC and CSOSA Defendants in their individual capacity.
II. DISCUSSION
A. Standards of Review
The USPC and CSOSA Defendants have moved to dismiss Counts I and II of the
amended complaint for failure to state a claim upon which relief can be granted pursuant to Rule
12(b)(6). Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). When evaluating a Rule 12(b)(6) motion, the court liberally construes the
complaint in favor of the non-moving party and grants all reasonable inferences to the
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nonmovant that can be derived from the facts alleged in the complaint. Stokes v. Cross, 327
F.3d 1210, 1215 (D.C. Cir. 2003).
The Defendants have moved to dismiss Count III of the amended complaint for lack of
subject matter jurisdiction pursuant to Rule 12(b)(1). Fed. R. Civ. P. 12(b)(1). “Federal courts
are courts of limited jurisdiction. They possess only that power authorized by Constitution and
statute, which is not to be expanded by judicial decree.” Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994) (citations omitted); see also Beethoven.com LLC v. Librarian of
Cong., 394 F.3d 939, 945 (D.C. Cir. 2005). On a motion to dismiss for lack of subject matter
jurisdiction, the plaintiff bears the burden of establishing that the Court has jurisdiction. Brady
Campaign to Prevent Gun Violence v. Ashcroft, 339 F. Supp. 2d 68, 72 (D.D.C. 2004). The
“nonmoving party is entitled to all reasonable inferences that can be drawn in her favor.” Artis
v. Greenspan, 158 F.3d 1301, 1306 (D.C. Cir. 1998) (emphasis omitted).
B. Ford Fails to State Individual Capacity Claims against CSOSA and USPC
under either § 1983 or Bivens
Ford asserts claims for civil damages under 42 U.S.C. § 1983 against all the Defendants
in their individual capacities because, as Ford contends, the Defendants acted under color of D.C.
law pursuant to the Revitalization Act. Alternatively, Ford asserts his constitutional claims as a
Bivens action if the Court finds that the Defendants acted pursuant to federal law. Ford contends
that: (1) he was deprived of his right to be free from unreasonable seizure in violation of the
Fourth Amendment because the Defendants’ actions resulted in his arrest and imprisonment; and
(2) he was deprived of his liberty interest without due process of law in violation the Fifth
Amendment because he was subjected to cycles of wrongful detention and supervised release
beginning on July 26, 2004.
Section 1983 provides, in pertinent part, that:
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[e]very person who, under color of any statute, ordinance, regulation, custom,
or usage, of any State or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper proceeding for
redress[.]
42 U.S.C. § 1983. In order to state a claim under § 1983, Ford must show that the Defendants
acted under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988) (“To state a claim
under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws
of the United States, and must show that the alleged deprivation was committed by a person
acing under color of state law.”). Plaintiffs may bring § 1983 claims for civil damages against
government officials acting under color of state law in their individual capacities. See Hafer v.
Melo, 502 U.S. 21, 25 (1991). On the other hand, a Bivens action is “the federal analog to suits
brought against state officials under . . . § 1983.” Iqbal, 556 U.S. at 675; see also Bivens, 403
U.S. at 397 (permitting suits against federal actors for constitutional violations).
The D.C. Circuit has held that the USPC and USPC employees are amenable to suit
under § 1983. See e.g., Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1104 (D.C. Cir. 2005);
Fletcher v. District of Columbia, 370 F.3d 1223, 1227 (D.C. Cir. 2004). However, the D.C.
Circuit has not extended Settles to CSOSA employees and, therefore, CSOSA employees are not
ameneable to suit under Section 1983. See Johnson v. Fenty, Civil Action No. 10-5105, 2010
WL 43403444, at *1 (D.C. Cir. Oct. 1, 2010) (affirming dismissal of Section 1983 claims against
CSOSA officials in their officials capacities because Section 1983 “does not apply to federal
officials acting under color of federal law”). Therefore, the proper avenue for relief against the
CSOSA officials is under Bivens.
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Defendants argue that absolute immunity bars Ford’s claims against the USPC and
CSOSA Defendants because the decisions that Ford challenges are all part of CSOSA and
USPC’s exercise of quasi-judicial power. “Courts have extended absolute immunity to a wide
range of persons playing a role in the judicial process.” Wagshal v. Foster, 28 F.3d 1249, 1252
(D.C. Cir. 1994) (collecting cases). Indeed, courts have held that quasi-judicial absolute
immunity applies to members of a parole board and to parole officers. See Pate v. United States,
277 F. Supp. 2d 1, 10-11 (D.D.C. 2003) (holding that the members of the D.C. Parole Board
were entitled to absolute immunity against the claim that they violated the parolee’s
constitutional rights when they failed to provide him with a timely parole revocation hearing);
see also Reynolds El v. Husk, 273 F. Supp. 2d 11, 13 (D.D.C. 2002) (extending absolute
immunity to a Commission case examiner).
Ford concedes that courts have uniformly extended aboslute immunity to parole board
members and commissioners who perform adjudictory functions—specifically, when they decide
to grant, deny, or revoke parole. See Walrath v. United States, 35 F.3d 277, 281 (7th Cir. 1994)
(collecting cases from the First, Seventh, Eighth and Ninth circuits); see also Montero v. Travis,
171 F.3d 757, 761 (2nd Cir. 1999) (collecting cases from the Tenth and Eleventh circuits) (“We
join our sister circuits and hold directly that parole board officials, like judges, are entitled to
absolute immunity from suit for damages when they serve a quasi-adjudicative function in
deciding whether to grant, deny or revoke parole.”). However, Plaintiff contends that the
challenged conduct in this case—requesting and signing an arrest warrant and certificate of
supervised release, requesting and signing a warrant application, and signing an expedited
revocation determination—is not adjudicative. Instead, Plaintiff argues that this conduct is
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administrative or ministerial in nature and, therefore, the CSOSA and USPC Defendants are not
entitled to absolute immunity for the challenged conduct.
The allegations of the complaint, taken as true and viewed in the light most favorable to
the plaintiff, do not clearly indicate that all the CSOSA and USPC Defendants are entitled to
absolute immunity. The conduct of some of the Defendants was adjudicatory and/or
prosecutorial in nature, and the conduct of others was investigatory of administrative. Therefore
the Court must examine the conduct of each Defendant to determine whether he or she
performed a function for which absolute immunity is required. See Cleavinger v. Saxner, 474
U.S. 193, 201 (1985) (courts generally take a functional appraoch when determining whether an
official receives qualified or absolute immunity; the level of immunity “flows not from rank or
title or ‘location within the Government,’ but from the nature of the [official’s] responsibilities”).
1. USPC Commissioners Mitchell and Fulwood are entitled to absolute immunity
Ford alleges that USPC Commissioners Mitchell and Fulwood violated his constitutional
rights by signing invalid arrest warrants on February 17, 2004 and February 2, 2006,
respectively. Am. Compl. ¶¶ 47, 51, 62, 66. Commissioners Mitchell and Fuller are entitled to
absolute immunity because their discretionary decisions to sign the arrest warrants based on
Defendants Herman and Jackson’s warrant applications is a quasi-judicial function. Indeed,
“[t]he issuance of an arrest warrant has several key characteristics in common with a judicial act:
it involves the exercice of discretion in applying the law to the facts of a particular case, poses a
heightened risk of vexatious litigation, and is ‘open to correction through ordinary mechanisms
of review.’” Walrath, 35 F.3d at 282 (citing Forrester v. White, 484 U.S. 219, 227 (1988)).
Mitchell and Fuller merely made a discretionary decision based on the information presented to
them by Herman and Jackson that there was probable cause to believe that Ford had violated the
8
terms of his supervised release. Mitchell and Fuller’s acts of signing the arrest warrants are
therefore absolutely immune from suit. 3
2. The CSOSA and USPC Defendants are entitled to qualified immunity
According to the Amended Complaint, Defendants Khan and Stigall proximately caused
and contributed to Ford’s unreasonable siezure and overdetention by unlawfully requesting that
arrest warrants be issued for him on February 10, 2004 and December 27, 2005. Am. Compl. ¶¶
45, 48, 60, 63. In addition, Ford alleges that Defendant Young contributed to his unreasonable
seizure and overdetention by supporting the request of her suprvisee, Defendant Stigall, that an
arrest warrant be issued on December 27, 2005. Am. Compl. ¶¶ 49, 64.
Ford alleges that USPC Defendants Herman and Jackson proximately caused and
contributed to his unreasonale seizure and overdetention by signing invalid warrant applications
on February 17, 2004 and February 1, 2006. Am. Compl. ¶¶ 46, 50, 55, 6,. Ford also alleges
that Defendant Gobble contributed to his unlawful seizure and over detention by signing multiple
proposals for expedited revocation determinations. Am. Compl. ¶¶ 52, 67. With respect to
Defendant Kelley, Ford alleged that she proximately caused and contributed to his unlawful
seizure by signing an unlawful certificate of supervised release on May 17, 2005. Am. Compl.
¶¶ 53, 68.
Khan, Stigall, and Young’s conduct here does not constitute an adjudicative decision to
grant, deny, or revoke parole. Rather, these Defendants only recommended that a warrant be
issued for Ford’s arrest, a non-adjudicatory function. Therefore, none of these Defendants are
entitled to absolute immunity. See Russ v. Uppah, 972 F.2d 300, 303 (10th Cir. 1992) (granting
absolute immunity to parole board members for quasi-judicial act of revoking parole, but
3
As discussed in section II(B)(2), even if the Court were to find that Miller and Fuller are
not entitled to absolute immunity, they are protected by qualified immunity.
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denying immunity to parole officer who reccomended revocation); Scotto v. Almenas, 143 F.3d
105, 111 (2nd Cir. 1998) (denying absulute immunity to parole offier who reccomended that an
arrest warrant be issued); Johnson v. Williams, 699 F. Supp. 2d 159, 167-68 (D.D.C. 2010)
(collecting cases). Likewise, USPC Defendants Herman and Jackson are not entitled to absolute
immunity because they performed the non-discretionary function of signing warrant applications,
while other officials performed the adjudicatory function of signing the warrants and issuing
them. Although Gobble’s conduct—signing proposals for expedited revocation hearings—is
related to the adjudicatory function of revoking parole, it is not protected by absolute immunity
because another official made the discretionary prosecutorial decision to issue the order for a
revocation hearing. See Swift v. California, 384 F.3d 1184, 1192-93 (9th Cir. 2004) (concluding
that parole officers were not entitled to absolute immunity because actions requesting revocation
proceedings “were more akin to a police officer seeking an arrest warrant, than to a prosecutor
exercising quasi-judicial discretion to initiate criminal proceedings”).
Nonetheless, Defendants argue that they are all entitled to qualified immunity, which
shields government officials from suit when performing certain discretionary functions.
“Generally, when a plaintiff sues a governement agent in his individual capacity and the
government agent raises a qualified immunity defense, the plaintiff must overcome the qualified
immunity defense in order to survive a Rule 12(b)(6) motion to dismiss.” Ennis v. Lott, 589 F.
Supp. 2d 33, 36-37 (D.D.C. 2008).
Qualified immunity protects government officials “from liability for civil damages
insofar as their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
The relevant dispositive inquiry under this standard is “whether it would be clear to a reasonable
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officer that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S.
194, 202 (2001). The doctrine of qualified immunity “gives government officials breathing
room to make reasonable but mistaken judgments,” and “protects ‘all but the plainly incompetent
or those who knowingly violate the law.’” Ashcroft v. al-Kidd, --- U.S. ---, ---, 131 S. Ct. 2074,
2085 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986).
The CSOSA and USPC are protected by qualified immunity because they acted
reasonably in light of the situation they confronted. It has already been determined that Ford’s
constitutional rights were violated. See Ford, 652 F. Supp. 2d at 22. The fact that the court
concluded in Ford’s habeas action that his rights were clearly violated does not mean that the
defendants should have known that they were violating Ford’s rights. Elkins v. District of
Columbia, Civil Action Nos. 10-7060, 10-7069, 2012 WL 3240301, at *10 (D.C. Cir. Aug. 10,
2012). The appropriate question to ask is whether it would have been clear to a reasonable
officer in Defendants’ situation that their conduct was unlawful. Id. It is well settled that it is
the United States Attorney General (through the BOP) who is responsible for computing an
offender’s federal sentence, including both commencement and release dates, and any jail-time
cedit to which the federal offender may be entitled under 18 U.S.C. § 3585(b). United States v.
Wilson, 503 U.S. 329, 332, 334-45 (1992). The CSOSA and USPC officials reasonably relied
upon the BOP’s computation of Ford’s sentence. Moreover, it was reasonable for the USPC and
CSOSA officials to interpret the sentencing order to mean that Ford would be under supervised
release for three months after the date of his release. Notwithstanding Ford’s allegations that he
made requests to both Khan and Gobble that his sentence be recalculated, it would not be clear to
a reasonably competent officer that issuing a warrant and initiating a revocation hearing would
result in violation of Ford’s Fourth and Fifth Amendment rights. Ford’s injuries occurred “due
11
to an error by the executive authority” based on mixed questions of fact and law concerning the
start date of Ford’s supervised release. Ford, 652 F. Supp. 2d at 21. An official could
reasonably believe that Ford’s violation of the conditions of his supervised release, within three
months of his release from incaeration, provided probable cause for the issuance of an arrest
warrant, and the subsequent decisions that led to Ford’s incarceration. Therefore it would not be
clear to “a reasonable officer . . . in the situation [the Defendants] confronted” that requesting a
warrant and signing a warrant application would result in a violoation of Ford’s rights under the
Fourth and Fifth Amendments. Saucier, 533 U.S. at 202. Although the actions of Defendants
were ultimately found to be mistaken, they were not unreasonable. Pearson v. Callahan, 555
U.S. 223, 244 (2009). Thus, the constitutional claims brought against the USPC and CSOSA
Defendants in their individual capacities in Counts I and II will be dismissed pursuant to Rule
12(b)(6) because they are entitled to qualified immunity.
III. The Court Lacks Subject-Matter Jurisdiction over Ford’s FTCA Claims
Count III of Ford’s amended complaint alleges a claim for negligence under the FTCA
against the United States. Defendants move to dismiss Count III for lack of subject-matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1), arguing that Ford’s FTCA claims are
barred by the intentional tort exception.
“The United States is immune from suit unless it waives its sovereign immunity through
an act of Congress.” Hayes v. United States, 539 F. Supp. 2d 393, 397 (D.D.C. 2008) (citing
FDIC v. Meyer, 510 U.S. 471, 475 (1994)). In a suit against the United States, the plaintiff
“bears the burden of proving that the government has unequivocally waived its immunity for the
type of claim involved.” Hayes, 539 F. Supp. 2d at 397 (citation omitted). The government has
waived its immunity regarding “negligent or wrongful act[s] or omission[s] of any employee of
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the government while acting within the scope of his office or employment . . . .” 28 U.S.C. §
1346(b)(1). However, the FTCA sets out certain categories of claims that are excluded from the
purview of the Act. The intentional tort exception of the FTCA excludes any claims “arising out
of assault, battery, false imprisonment, [or] false arrest . . .” so long as these torts are not
committed by a law enforcement officer of the United States Government. 28 U.S.C. § 2680(h).
The Defendants contend that Ford’s FTCA claims falls within the ambit of the intentional
tort exception because his claims, though couched as negligence claims, are actually claims for
false arrest and false imprisonment. Ford argues that his FTCA claims sound in negligence
because the allegations in the Amended Complaint state the Ford’s injuries were the proximate
result of errors on the part of government officials. For example, Ford alleges that Defendant
Khan “negligently submit[ed] a supervised release violation report and request[ed] that an arrest
warrant be issued.” Am. Compl. ¶ 77. Similarly, Ford alleges that defendant Gobble
“negligently sign[ed] multiple proposals for expedited revocation determinations.” Am. Compl.
¶ 84.
Taken at face value, it would appear that Ford’s allegations sound in negligence.
However, the law in this Circuit requires the court to “scrutinize the alleged cause of [Ford’s]
injury” when assessing the nature of his claims. Kugel v. United States, 947 F.2d 1504, 1506
(D.C. Cir. 1991) (citing Block v. Neal, 460 U.S. 289, 297 (1983); see also Snow-Erlin v. United
States, 470 F.3d 804, 808 (9th Cir. 2006) (noting that courts “look beyond [the party’s]
characterization to the conduct on which the claim is based,” and that “if the gravamen of
Plaintiff’s complaint is a claim for an excluded tort under § 2680(h), then the claim is barred”).
Although Ford’s Amended Complaint makes several references to the Defendants’ negligent
acts, the harm that Ford alleges that he suffered is “harm to his person” and deprivation of his
13
“dignity, liberty, and property.” Am. Compl. ¶ 89. It appears that the cause of Ford’s injuries
was not the Defendants’ various alleged negligent acts and omissions, but rather the subsequent
false arrest and false imprisonment that flowed from those actions. Indeed, had the Defendants
miscalculated the duration of Ford’s supervised release and requested arrest warrants be issued,
but not arrested and detained Ford, Ford’s Amended Complaint suggests that he would not have
suffered any damage. For these reasons, Ford’s damages arise out of his false arrest and/or false
imprisonment, not the alleged negligent actions of the USPC and CSOSA Defendants. See
Kugel, 947 F.2d at 1507 (concluding that plaintiff’s claims, though couched in terms of
negligence, sounded in defamation and were therefore barred under FTCA); see also Snow-Erlin,
470 F.3d at 809 (holding that plaintiff could not sidestep the FTCA’s exclusion of false
imprisonment claims by suing for the damage of false imprisonment under the label of
negligence). Accordingly, the Court finds that Ford’s claims under the FTCA arise out of false
arrest and false imprisonment.
Having found the Ford’s claims sound in false arrest and false imprisonment, the Court
will only have subject matter jurisdiction over his FTCA claim if the Court determines that the
USPC and CSOSA Defendants fall within the “investigative or law enforcement officer”
exception under § 2680(h). Although the FTCA retains the government’s immunity from suits
predicated on claims arising out of false arrest and false imprisonment, the government’s
sovereign immunity is nevertheless waived if the challenged conduct is committed by an
“investigative or law enforcement officer.” 28 U.S.C. 2680(h). The “investigative or law
enforcement officer exception” does not apply to the CSOSA or USPC Defendants. The FTCA
defines an “investigative or law enforcement officer” as “any officer of the United States who is
empowered by law to execute searches, to seize evidence, or to make arrests for violations of
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federal law.” Id. The USPC employees are not investigative or law enforcement officers within
the meaning of the FTCA. See Wilson, 959 F.2d at 15. Likewise, CSOSA officers do not have
the authority to make arrests, and only have authority to recommend that the USPC issue a
warrant. Therefore, because the USPC and CSOSA Defendants are not “law enforcement
officers” within the meaning of the FTCA, Ford’s claims must be dismissed.
IV. CONCLUSION
Based on the foregoing, the Court finds that Ford’s § 1983 and Bivens claims are barred
by qualified immunity. The FTCA claims against the USPC and CSOSA Defendants are barred
by the intentional tort exception. Therefore, Counts I, II, and III will be dismissed against the
USPC and CSOSA Defendants. A separate order accompanies this Memorandum Opinion.
Digitally signed by Judge Robert L.
Wilkins
SO ORDERED. DN: cn=Judge Robert L. Wilkins,
o=U.S. District Court, ou=Chambers
of Honorable Robert L. Wilkins,
email=RW@dc.uscourt.gov, c=US
September 10, 2012 __________________________
Date: 2012.09.10 10:15:09 -04'00'
Robert L. Wilkins
United States District Judge
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