Court of Appeals for the D.C. Circuit

Wanda Alexander Hoston v. Earl Silbert, U. S. Attorney for the District of Columbia

1982 U.S. App. LEXIS 17887 · 220 U.S. App. D.C. 361 · 681 F.2d 876

June 29, 1982 · Docket 81-1723

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Opinion

Opinion PER CURIAM.

Dissenting opinion filed by Circuit Judge ROBB.

PER CURIAM:

The issue in this appeal is whether the district court erred in dismissing for lack of subject-matter jurisdiction, see 28 U.S.C. Rule 12(b)(1),1 appellants’ wrongful death action brought against the United States under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b). We hold that the district court was in error and, accordingly, reverse and remand the case ■ for appropriate proceedings.

I. BACKGROUND

Curtis E. Hoston, Jr. died on October 27, 1976, as a result of injuries inflicted by deputy United States Marshals and other federal officials who held him in custody while he was awaiting arraignment before the Superior Court for the District of Columbia. Appellants’ Complaint avers that Hoston was beaten to death while “unarmed, prone and manacled” and “left to die for over V2 hour without medical attention” in a holding cell. Joint Appendix (“J.A.”) at 14. Appellees, on the other hand, claim that Hoston seized a revolver from one of the deputies and fired a shot in the courtroom and that he was fatally injured during the ensuing effort to subdue him. In May 1979, appellants, who are the administrator and next friends of Hoston’s estate, brought this action against forty individual defendants and the United States under a variety of statutory and common law theories, including wrongful death, civil conspiracy and failure to prosecute. Appellants limit this appeal, however, to the dismissal of the wrongful death claim against defendant United States.

II. ANALYSIS

The FTCA vests in the district court exclusive jurisdiction over claims for money damages against the United States for

personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, 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.

28 U.S.C. § 1346(b). The district court concluded that appellants’ pleadings failed to satisfy the FTCA requirement that an official’s tortious acts be committed “within the scope of his office or employment.” The court relied primarily upon that portion of appellants’ complaint which states that the officials who beat Hoston to death

were at all times duly appointed and qualified U S Marshalls [sic] agents of the U. S. Government and acting in the course of their employment & duties, however certain of the activities complained of herein were willfully & maliciously in excess of and outside the scope of their employment.

J.A. at 13 (emphasis added). The court further observed that the theme of willful and malicious misconduct is reflected throughout the complaint, and “nowhere does the complaint state a cause of action for negligence.” Hoston v. Silbert, 514 F.Supp. 1239, 1242, (D.D.C.1981), J.A. at 37, 39.

The quoted language notwithstanding, we think that appellants’ complaint, taken as a whole, alleges acts sufficient to establish jurisdiction, although it may fall at the outer limits of liberal reading.2 First, while appellants did not employ the term “negligence,” the allegation that the deceased was “left to die for over lh hour without medical attention” raises the issue of negligence as a basis of relief if the facts fail to show intentional wrongdoing.3 We must also reject the district court’s implication that willful and malicious misconduct is not actionable under the FTCA. Congress has specifically provided that section 1346(b) shall apply to the intentional torts of federal law enforcement officers, including claims arising out of assault and battery. 28 U.S.C. § 2680(h).4 Thus, appellants’ allegation of willful conduct by the government agents should not in itself deprive the district court of jurisdiction where, as here, the claim arose out of an alleged battery.5 The question remaining is whether the complaint alleges facts sufficient to meet the FTCA requirement that the government employee’s tortious act be committed “while acting within the scope of his office or employment.” 28 U.S.C. § 1346(b). Whether given acts are within the scope of employment is ultimately a legal question. See, e.g., Doman v. United States, 460 F.2d 425, 427 (9th Cir. 1972) (whether particular act “within the scope of an employee’s federal employment depends upon an analysis of the facts under the law of the place where the tort occurred”). Thus, our inquiry into the adequacy of the factual allegations to meet the applicable legal standard is not foreclosed by the conclusory opinion expressed in the complaint. Because liability depends upon “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,” 28 U.S.C. § 1346(b), we must look to District of Columbia respondeat superior and agency rules to determine whether these United States employees were acting within the scope of their employment. We find that appellants have alleged facts which, if proved, would establish vicarious liability under the laws of the District of Columbia.

In Lyon v. Carey, 533 F.2d 649 (D.C.Cir.1976),6 this court described the “outer bounds of respondeat superior.” Id. at 651. The court held that an employer would be liable if an assault by an employee grew out of a foreseeable “job-related controversy”7 as opposed to a “personal adventure.” Id. A subsequent case, International Distributing Corp. v. American District Telegraph Co., 569 F.2d 136, 139 (D.C.Cir.1977),8 clarified that foreseeability must be combined with a purpose to further the employer’s interest: “In the District of Columbia, ‘[u]nless an assault ... is activated in part at least by a purpose to serve a principal, the principal is not liable.’ ” (quoting Meyers v. National Detective Agency, Inc., 281 A.2d 435, 437 (D.C.App.1971)).99

Appellants’ pleadings make out a case which could satisfy the Lyon-International Distributing Corp. scope-of-employment criteria. A United States Marshal’s duties— escorting and supervising frequently hostile and potentially dangerous prisoners — create a strong likelihood of violent confrontations in the course of which an officer could lose his temper and use tortiously excessive force.10 In paragraph one of the complaint, appellants allege that marshals assaulted the deceased while he was a “prisoner of the U. S. Marshals in the lock-up of the Arraignment Court of the District of Columbia Superior Court.” J.A. at 14. Appellants thus placed the deceased in the marshals’ custody at the time of the alleged assault, connecting the alleged tort with “a purpose to serve [the] principal.”

CONCLUSION

For the foregoing reasons, we conclude that appellants have alleged facts upon which jurisdiction can be based. We therefore reverse the district court’s dismissal of appellants’ wrongful death claim against the United States and remand the case for proceedings not inconsistent with this opinion.

.

. Fed.R.Civ.P. 12(b)(1) provides, in pertinent part:

[T]he following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter ....
Civ.P.12(b)(1) provides, in pertinent part: [T]he following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter .....

. The overstatement of the complaint tends to obscure any legitimate claim appellants may have. The complaint largely spends its force on extreme accusations and unnecessarily includes language damaging to appellants’ case. The following verbatim excerpt is characteristic:

4. Plaintiffs complain of a conspiracy of injustice & tyranny entrenched within the Federal Bureaucracy which is presently so pervasive as to insulate criminal public officials who as here murdered the deceased Mr. Ho-ston as in par. 1 above. This conspiracy against the public trust has prevailed to the detriment of the remaining public citizens because tentacles of that conspiracy now extend and infiltrate into the Congress & STAFF, the Executive Branch, National security & defense, The Judiciary, The Ensuing Agro-Energy Resource Monopoly, The financial sector, and the media and communications sector.

This is made possible by the combination of:

A. Having now co-opted the independent, investigative and deliberative citizen Grand Jury Power as guaranteed by the 9th. Amendment to the U.S. Const, so as to preclude all but a rare criminal prosecution of public officials within the Federal bureaucracy, cooperating State Officials, and captains of U.S. Industry.
The complaint largely spends its force on extreme accusations and unnecessarily includes language damaging to appellants’ case.The following verbatim excerpt is characteristic: 4.Plaintiffs complain of a conspiracy of injustice & tyranny entrenched within the Federal Bureaucracy which is presently so pervasive as to insulate criminal public officials who as here murdered the deceased Mr. Ho-ston as in par.1 above.This conspiracy against the public trust has prevailed to the detriment of the remaining public citizens because tentacles of that conspiracy now extend and infiltrate into the Congress & STAFF, the Executive Branch, National security & defense, The Judiciary, The Ensuing Agro-Energy Resource Monopoly, The financial sector, and the media and communications sector.This is made possible by the combination of: A. Having now co-opted the independent, investigative and deliberative citizen Grand Jury Power as guaranteed by the 9th.Amendment to the U.S. Const, so as to preclude all but a rare criminal prosecution of public officials within the Federal bureaucracy, cooperating State Officials, and captains of U.S. Industry..

. Cf. e.g., International Distributing Corp. v. American District Telegraph Co., 569 F.2d 136, 139 (D.C.Cir.1977).

It is true that plaintiff IDC did not plead the theory of negligent supervision. However federal courts grant the parties the relief to which the facts entitle them, even if the proper theory has not been pled. 10 C. Wright & A. Miller, Federal Practice and Procedure § 2664 at 120-121 (1973), and cases cited.

Similarly, Fed.R.Civ.P. 54(c) provides:

Except as to a party against whom a judgment is entered by default, any final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.

28 U.S.C. Rule 54(c).

Cir.1977).It is true that plaintiff IDC did not plead the theory of negligent supervision.However federal courts grant the parties the relief to which the facts entitle them, even if the proper theory has not been pled.10 C. Wright & A. Miller, Federal Practice and Procedure § 2664 at 120-121 (1973), and cases cited.Similarly, Fed.R.Civ.P.54(c) provides: Except as to a party against whom a judgment is entered by default, any final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.28 U.S.C. Rule 54(c)..

. 28 U.S.C. § 2680 is a list of exceptions to § 1346(b) jurisdiction. In 1974 Congress amended § 2680(h) to read as follows:

§ 2680. Exceptions
The provisions of this chapter and section 1346(b) of this title shall not apply to—
(h) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights: Provided, That, with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter and section 1346(b) of this title shall apply to any claim arising, on or after the date of the enactment of this proviso, out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. For the purpose of this subsection, “investigative or law enforcement officer” means any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.
In 1974 Congress amended § 2680(h) to read as follows: § 2680.Exceptions The provisions of this chapter and section 1346(b) of this title shall not apply to— (h) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights: Provided, That, with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter and section 1346(b) of this title shall apply to any claim arising, on or after the date of the enactment of this proviso, out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution.For the purpose of this subsection, “investigative or law enforcement officer” means any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law..

. Although appellants did not use the word “battery” in their pleadings, the complaint graphically alleges that the decedent’s fatal injuries were the result of a beating by the Deputy Marshal and others; appellants thus plainly have alleged a battery.

Additionally, it is settled that the FTCA is available to federal prisoners. United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963).

Additionally, it is settled that the FTCA is available to federal prisoners.United States v. Muniz, 374 U.S. 150 , 83 S.Ct. 1850 , 10 L.Ed.2d 805 (1963)..

. In Lyon, an employer was held liable for an assault with a knife, including rape, committed by its deliveryman upon a customer. The assault and rape followed a dispute between the deliveryman and the customer over whether he would carry upstairs the merchandise he had delivered and whether he could accept a check.

The assault and rape followed a dispute between the deliveryman and the customer over whether he would carry upstairs the merchandise he had delivered and whether he could accept a check..

. The Lyon court emphasized that “[t]he dispute arose out of the very transaction which had brought Carey to the premises, and, according to the plaintiff’s evidence, out of the employer’s instructions to get cash only before delivery.” 533 F.2d at 652. The court concluded that it was “within the enterprise liability” of merchants that deliverymen “are likely to be in situations of friction with their customers” and that “these foreseeable altercations may precipitate violence for which recovery may be had, even though the particular type of violence was not in itself anticipated or foreseeable.” Id. at 651.

In Davis v. United States, 542 F.2d 1361, 1364 (9th Cir. 1976), the court described the relationship between enterprise liability and re-spondeat superior:

In the final analysis, the various embellishments upon the general doctrine of responde-at superior are simply shorthand devices developed to allocate risk justly. A business *880should bear all risks which are usually associated with carrying on a business, but it should not be saddled with risks which arise solely by virtue of its employee’s pursuit of purely personal convenience.
533 F.2d at 652 .The court concluded that it was “within the enterprise liability” of merchants that deliverymen “are likely to be in situations of friction with their customers” and that “these foreseeable altercations may precipitate violence for which recovery may be had, even though the particular type of violence was not in itself anticipated or foreseeable.”Id. at 651 .In Davis v. United States, 542 F.2d 1361, 1364 (9th Cir. 1976), the court described the relationship between enterprise liability and re-spondeat superior: In the final analysis, the various embellishments upon the general doctrine of responde-at superior are simply shorthand devices developed to allocate risk justly.A business should bear all risks which are usually associated with carrying on a business, but it should not be saddled with risks which arise solely by virtue of its employee’s pursuit of purely personal convenience..

. In International Distributing Corp., the defendant (ADT) contracted to provide burglar alarm service to plaintiff, a liquor distributor. Part of the arrangement provided that, upon hearing an alarm, ADT would dispatch employees to plaintiff’s storeroom. Plaintiff had provided keys for the ADT employees and in so doing left the fox to guard the henhouse. Defendant was held not vicariously liable for its employees’ subsequent pilferage of plaintiff’s merchandise. The court distinguished Lyon: “It is clear that the thefts in this case were ‘simply a personal adventure’ which did not spring from any purpose to serve the employer.” 569 F.2d at 139.

Part of the arrangement provided that, upon hearing an alarm, ADT would dispatch employees to plaintiff’s storeroom.Plaintiff had provided keys for the ADT employees and in so doing left the fox to guard the henhouse.Defendant was held not vicariously liable for its employees’ subsequent pilferage of plaintiff’s merchandise.The court distinguished Lyon : “It is clear that the thefts in this case were ‘simply a personal adventure’ which did not spring from any purpose to serve the employer.”569 F.2d at 139 ..

. For further clarification of this test compare Neary v. Hertz Corp., 231 F.Supp. 480, 484 (D.D.C.1964) (agent committed assault in course of flight from hit-and-run accident while driving employer’s vehicle, flight regarded as “essential link in the unbroken chain of events” such that the assault must be held “done in the prosecution of [employer’s] business”), and Dil-li v. Johnson, 107 F.2d 669 (D.C.Cir.1939) (restaurant owner held liable for manager’s assault on patron, “even though he may act wantonly and contrary to his employer’s instructions”) (quoted in Lyon v. Carey, 533 F.Supp. at 652-53, with Penn. Central Transp. Co. v. Reddick, 398 A.2d 27, 28 (D.C.App.1979) (off-duty brakeman assaulted a taxi driver while seeking transportation from Union Station, no evidence that the brakeman was trying to get to another job assignment; employer held not liable).

480, 484 (D.D.C.1964) (agent committed assault in course of flight from hit-and-run accident while driving employer’s vehicle, flight regarded as “essential link in the unbroken chain of events” such that the assault must be held “done in the prosecution of [employer’s] business”), and Dil-li v. Johnson, 107 F.2d 669 (D.C.Cir.1939) (restaurant owner held liable for manager’s assault on patron, “even though he may act wantonly and contrary to his employer’s instructions”) (quoted in Lyon v. Carey, 533 F.Supp. at 652-53, with Penn.Central Transp.Co. v. Reddick, 398 A.2d 27, 28 (D.C.App.1979) (off-duty brakeman assaulted a taxi driver while seeking transportation from Union Station, no evidence that the brakeman was trying to get to another job assignment; employer held not liable)..As the court noted in Penn.Central Transp.

. As the court noted in Penn. Central Transp. Co. v. Reddick, 398 A.2d at 31:

The present trend is to extend liability for intentional torts to situations where the employment provides a “peculiar opportunity and ... incentive for such loss of temper,” as where an argument is likely by virtue of the servant’s duties, and the conduct is wholly or partially in furtherance of the master’s business.

Escorting potentially dangerous prisoners would seem to be the epitome of a “peculiar opportunity” for “such loss of temper.”

.. incentive for such loss of temper,” as where an argument is likely by virtue of the servant’s duties, and the conduct is wholly or partially in furtherance of the master’s business. Escorting potentially dangerous prisoners would seem to be the epitome of a “peculiar opportunity” for “such loss of temper.”