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Snow-Erlin v. United States


July 14, 2005


The opinion of the court was delivered by: Vaughn R Walker United States District Chief Judge


Before the court is defendant United States of America's ("the government") motion to dismiss for lack of subject matter jurisdiction pursuant to FRCP 12(b)(1) or, alternatively, for summary judgment pursuant to FRCP 56(c). Doc #37. The original plaintiff in this action, Darrow Kierov Erlin ("Erlin") has since died and his widow Barbara Snow-Erlin ("plaintiff") is pursuing the claim on behalf of Erlin's estate. Plaintiff also moves the court for partial summary judgment on the issue of liability. Doc #39. For the reasons that follow, the court GRANTS the government's motion to dismiss, and DENIES as moot plaintiff's motion for partial summary judgment.


The following facts and procedural history are derived from Erlin's complaint, this court's previous order of August 31, 2000 (Doc #23), and the Ninth Circuit Court of Appeals' opinion, found at Erlin v United States, 364 F3d 1127 (9th Cir 2004). In 1984, Erlin was sentenced to three years of incarceration (six months confined, remaining two-and-a-half years suspended) and five years probation (commencing upon his release) for conspiracy and attempt to manufacture methaqualone in violation of 21 USC §§ 841(a)(1) and 846. In 1988, while out on probation, Erlin was convicted of possession of cocaine with intent to distribute in violation of 21 USC § 841(a)(1). For this violation, Erlin was sentenced to ten years non-parolable imprisonment, followed by eight years of supervised release. Because this second drug crime violated Erlin's 1984 probation conditions, the suspended two-anda-half year sentence was re-imposed, to be served consecutively with the ten-year sentence. The Bureau of Prisons properly aggregated Erlin's three-year and ten-year sentences into a consecutive thirteen year term to calculate his mandatory release date under 18 USC § 4161 (now repealed). Erlin was released on February 17, 1995.

In 1996, Erlin again violated his sentencing conditions (this time, of his supervised release) when he failed to report that he had been arrested for drunk driving in March 1996. The Parole Commission issued a warrant for his arrest on May 9, 1996, and Erlin was arrested on this federal warrant on June 28, 1996. The court that handled Erlin's cocaine crime revoked his supervised release and ordered six months of imprisonment. Additionally, the Parole Commission held a hearing and revoked Erlin's mandatory release parole and ordered him to serve twenty additional months imprisonment consecutively with the court-imposed six months.

Erlin contested the Parole Commission's jurisdiction over him and filed an administrative appeal of its imposition of an additional twenty months. This appeal was unsuccessful. On January 13, 1997, Erlin filed a petition for writ of habeas corpus under 28 USC § 2241 in the United States District Court for the Central District of California. On October 16, 1997, the writ was granted, and on November 17, 1997, Erlin was released. The district court reasoned that although Erlin's sentences had been correctly aggregated initially into a thirteen-year term, the Parole Commission's postconfinement jurisdiction over Erlin should have been based on his three-year sentence only. This was in accordance with the Anti-Drug Abuse Act of 1986, 18 USC § 3583, in which Congress intended to replace "parole" with a system of "supervised release" for most drug crimes, including the kind that Erlin had committed when he received his ten-year sentence. Hence, the Parole Commission lacked statutory authority over Erlin when it imposed the additional twenty months.

On November 1, 1998, Erlin filed a claim with the appropriate federal agency (the Federal Bureau of Prisons) as required procedurally by the Federal Tort Claims Act (FTCA), see 28 USC § 2675. More than six months passed without disposition. On August 31, 1999, Erlin filed the instant suit, alleging personal injury from the "negligent incarceration of plaintiff" by agents of the government. Doc #1, ¶ 1. Erlin claims that the government negligently calculated his parole period, causing him to be taken into custody on an invalid parole warrant and serve 311 days in prison after he should have been released. On August 31, 2000, the court dismissed Erlin's suit, holding that the two-year statute of limitations period on FTCA suits had expired because Erlin's cause of action had accrued on May 9, 1996, when the Parole Commission issued the warrant based on the miscalculated parole expiration. Doc #23.

Plaintiff appealed, and on April 19, 2004, the United States Court of Appeals for the Ninth Circuit reversed, holding that Erlin's cause of action for negligent miscalculation of his release date did not accrue until he succeeded in challenging his continued imprisonment through his petition for writ of habeas corpus - which was granted on October 16, 1997. Erlin, 364 F3d at 1133-34. Because Erlin filed his FTCA claim within two years of October 16, 1997, the statute of limitations did not bar it. Id.

Currently before the court is the government's motion to dismiss Erlin's cause of action under 28 USC § 2680(h). Doc #37. As previously noted, this action is being pursued by decedent Erlin's estate, which also moves the court for partial summary judgment on the issue of liability. Doc #39. The government argues that Erlin's claim of negligence is a "disguised claim of false imprisonment," which is specifically excepted under the FTCA and thus the court lacks subject matter jurisdiction over the claim. The government also argues that Erlin's cause of action should be dismissed under 28 USC § 2680(a). Alternatively, the government moves for summary judgment.


Federal courts have limited subject matter jurisdiction and, unless jurisdiction is authorized by the Constitution or a statute, a federal court is presumed to lack jurisdiction. Kokkonen v Guardian Ins Co of America, 511 US 375, 377 (1994); National Treasury Employees Union v Fed Labor Relation Authority, 112 F3d 402, 404 (9th Cir 1997). The burden of establishing otherwise rests on the party asserting jurisdiction. Kokkonen, 511 US at 377.

Sovereign immunity protects the government from suit unless Congress specifically abrogates that immunity by statute. See e g, Finn v United States, 123 US 227, 233 (1887); United States v Shaw, 309 US 495, 504 (1940). The FTCA waived the government's sovereign immunity for injuries caused by government employees. Section 1346(b) reads in pertinent part:

[The] district courts * * * shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages * * * for * * * personal injury * * * 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 USC § 1346(b). The FTCA is not, however, without exceptions. The United States retains its immunity from suit for certain enumerated intentional torts. Section 2680(h) reads in pertinent part:

The provisions of this chapter [waiving sovereign immunity] * * * shall not apply to --

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.

28 USC § 2680(h) (emphasis added). Accordingly, this court's subject matter jurisdiction hinges on whether Erlin's claim falls under section 2680(h).

The government argues that Erlin's claim for "personal injury resulting from the negligent incarceration * * * by the government's employees" (Compl, ¶ 1) is a disguised claim of false imprisonment, which is specifically excepted from the FTCA. Doc #37 at 7-9. The government urges the court to look at the "injury in fact" (id at 8:10) which gave rise to the claim and emphasizes the broad language of the statute - "any claim arising out of" - as an indication of Congress's intent (id at 8-9).

Plaintiff primarily contends that the Ninth Circuit previously decided this issue in its April 19, 2004, opinion, and this court is bound by the appellate court's resolution of an issue of law. Doc #44 at 8-10. Alternatively, plaintiff argues that Erlin was free to plead the cause of action of his choice. Id at 10-12.

The court disagrees that the Ninth Circuit either explicitly or by implication decided the issue whether Erlin's claim of negligence was a "disguised claim of false imprisonment." The Court of Appeals stated in the opening paragraph of its opinion: "This is a statute of limitations case. The issue is when a cause of action accrued for purposes of the statute of limitations under the Federal Torts Claim Act." Erlin, 364 F3d at 1129. To decide this issue, the court necessarily had first to take the theory of Erlin's case as given, and then determine when the cause of action accrued. The Court of Appeals had no reason to find that Erlin's cause of action was anything but what it purported to be: "negligence in miscalculating Erlin's release date" (id at 1130). A careful reading reveals that when the Court of Appeals later drew a distinction ("in fact [Erlin's claim] is not for false imprisonment[,] [i]t is for negligence") (id at 1133) it was to emphasize that a different result on the statute of limitations question might ensue if Erlin's claim, on its face, had been one for false imprisonment. This is supported by the fact that neither party briefed the Court of Appeals on the "disguised claim" issue at bar, nor did the Court of Appeals make any reference to the Supreme Court's guidance in this area.

Turning to the issue whether Erlin's cause of action is "disguised," it is true that plaintiffs are ordinarily free to plead the cause of action of their choice. The question then becomes whether a claim for "negligence in calculating a prisoner's release date" can exist separately from a claim for "false imprisonment" in the context of the FTCA's waiver of sovereign immunity. The court finds it cannot. First, the liability of the government in an FTCA action is determined under the law of the state in which the act or omission occurred, in this case California. See Delta Savings Bank v United States, 265 F3d 1017, 1025 (9th Cir 2001). Under California law, the tort of false imprisonment can be committed by negligent as well as intentional conduct, Sullivan v County of Los Angeles, 12 Cal 3d 710, 718 (1974), and is broadly defined as the "unlawful violation of the personal liberty of another." Cal Penal Code § 236 (1999).

Next, courts have addressed the situation of negligence giving rise to an excluded claim under the FTCA. In their treatise on federal tort claims, Jayson & Longstreth summarized:

[W]here the ultimate wrong involved constitutes one of f the torts expressly excluded by the Torts Claims Act in 28 USC § 2680, claimants have attempted to escape the exclusion by relying on negligence that preceded such ultimate wrong. * * * On five separate occasions, the Supreme Court has addressed the issue of whether an allegation that governmental negligence accompanied the commission of an excluded tort permits a plaintiff to avoid the operation of the relevant FTCA exclusion. So far, the Court has declined to adopt the absolutist position that a claim is barred whenever an excluded tort is part of the factual circumstances underlying the suit. Instead, the test is whether plaintiff has stated a valid negligence claim that is wholly independent of the excluded tort.

Jayson & Longstreth, 2 Handling Federal Tort Claims § 9.05[2][h] (2005). Courts dealing with cases involving errors in calculating prison sentences have tended to dismiss those actions as ones for false imprisonment. See e g Puccini v United States, 978 F Supp 760, 761 (N D Ill 1997); Shelton v United States, 1991 WL 247815 at *1 (D D C).

It is this circuit's practice to "look[] beyond the labels used to determine whether a proposed claim is barred." Thomas-Lazear v Federal Bureau of Investigation, 851 F2d 1202, 1207 (9th Cir 1988). In Thomas-Lazear, plaintiffs' contended that federal officials conspired to defame them by making false statements. Id at 1203. The court noted: "[plaintiff] attempts to fashion slander and libel claims into a claim for negligent infliction of emotional distress by saying the officials were negligent in not foreseeing the effect of their slander in causing emotional distress." Id at 1206. The Ninth Circuit was not convinced, stating that: "the claim for negligent infliction of emotional distress is nothing more than a restatement of the slander claim, which is barred by section 2680(h). Put another way, the Government's actions that constitute a claim for slander are essential to Thomas-Lazear's claim for negligent infliction of emotional distress." Id at 1207. This logic controls the present case.

Moreover, a plaintiff must demonstrate that the factual circumstances would give rise to a permitted cause of action even had an excluded tort never been committed. Sheehan v United States, 896 F2d 1168, 1171 (9th Cir 1990). In Sheehan, the plaintiff alleged that her supervisor had subjected her to unwanted sexual advances forming the basis of an "intentional infliction of emotional distress" claim. Id at 1168. The district court granted summary judgment to the government, believing that this cause of action fell under the ambit of one "arising out of assault," and thus was expressly excluded from the FTCA. Id. The Court of Appeals reversed, stating:

"[T]he Supreme Court has focused inquiry on the conduct upon which plaintiff's claim is based. Regardless of the plaintiff's characterization of the cause of action, § 2680(h) bars suit for claims based on conduct which constitutes one of the excepted torts, and bars suits for no other claims."

Id at 1171 (summarizing analysis of United States v Neustadt, 366 US 696 (1961) and United States v Neal, 460 US 289 (1983)). The Court of Appeals concluded that the tort of "intentional infliction of emotional distress" would be a cognizable cause of action under the FTCA, as long as the conduct comprising the injury for such a claim was independent from conduct that would give rise to a barred claim. Id at 1173.

Applying the above principles to the instant case, the court concludes that the alleged acts of governmental negligence (miscalculating plaintiff's parole expiration date and/or failing to ensure it was properly calculated) give rise to the excluded tort of false imprisonment. Taking plaintiff's allegations as true, it appears to the court that the government conduct alleged is precisely the conduct that would render plaintiff's extended incarceration "false" or unlawful. As in Thomas-Lazear, plaintiff's claim for negligent incarceration "is nothing more than an effort to remove the damage element from an intentional tort barred by section 2680(h) and plead it separately[,]" 851 F2d at 1206. Here, Erlin's damages arise from his false imprisonment. (See Compl, Doc #1, ¶ 21, "Erlin spent [311] days in Federal custody * * * causing him to suffer actual monetary damages and to suffer bodily injury, humiliation, mental anguish, and emotional distress.") Applying Sheehan, the court finds that plaintiff has not demonstrated that Erlin suffered any damages unrelated to the unlawful incarceration. Nor has plaintiff even attempted to do so. The "negligent" injury-causing conduct is inextricably linked to conduct giving rise to the barred tort of false imprisonment.


In sum, the court GRANTS the government's motion to dismiss plaintiff's complaint with prejudice pursuant to FRCP 12(b)(1). Because plaintiff's claim is barred under § 2680(h), the court DENIES as moot plaintiff's motion for partial summary judgment. The clerk shall close the file and terminate all motions.



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