29 L. Ed. 2d 619, 91 S. Ct. 1999 (Harlan, J., concurring).
Mr. Saddler fails to state a cause of action under 42 U.S.C. § 1983 because as a United States Capitol Police Officer, D'Ambrosio was acting under color of federal law, not under state law or District of Columbia law. At all times during this incident, Officer D'Ambrosio was acting in the course of his duties as a United States Capitol Police Officer. When the incident took place, Officer D'Ambrosio was on patrol in a United States Capitol Police patrol car, dressed in the uniform of the United States Capitol Police, acting under the authority of federal law. After Officer D'Ambrosio arrested Mr. Saddler, Officer D'Ambrosio took him to the United States Capitol Police Station.
Mr. Saddler suggests that because Officer D'Ambrosio first approached him near the intersection of Massachusetts Avenue and D Street, N.E., which is not formally within the boundaries of the United States Capitol, he was acting under color of the law of the District of Columbia, not under color of federal law.
Even if the Court were to find that Officer D'Ambrosio was one block outside his geographic jurisdiction, which the Court does not deem necessary to its decision, Officer D'Ambrosio would still be considered a federal official acting under color of federal law. Cf. Wirth v. Surles, 562 F.2d 319 (4th Cir. 1977), cert. denied, 435 U.S. 933, 55 L. Ed. 2d 531, 98 S. Ct. 1509 (When a highway patrolman crosses a state line to obtain custody of a suspect and returns the suspect without extradition to the state which the officer serves, he is acting under color of law, even if his acts constitute an abuse of authority conveyed upon an officer). Thus, Mr. Saddler's claim under 42 U.S.C. § 1983 must be dismissed for failure to state a claim.
C. Common Law Claims
Mr. Saddler's complaints include a number of common law claims against Officer D'Ambrosio. Only his negligence and replevin claims are viable under the statute of limitations.
Mr. Saddler's negligence and replevin claims must be dismissed for lack of jurisdiction, since he failed to satisfy the procedural prerequisite of filing a tort claim with the appropriate federal agency.
Pursuant to the Federal Employees Liability Reform and Tort Compensation Act of 1988, Mr. Saddler's exclusive remedy for personal injury or loss of property arising from the negligent or wrongful act or omission of an employee of the federal government, while acting in the scope of his employment is against the United States, not against Officer D'Ambrosio. 28 U.S.C. § 2679(b)(1). Section 8(d) of FELRTCA provides that the period during which the claim shall be deemed to be timely under Section 2679(d)(5) shall be the period that the claim would be timely under state law.
Thus, his claims of negligence and replevin against Officer D'Ambrosio are untimely.
These claims arise under 28 U.S.C. § 2679(d)(5), since the United States has been substituted as the party defendant. They will be dismissed for failure to first file a claim with the proper federal agency, pursuant to 28 U.S.C. § 2675. However, since Mr. Saddler filed his civil action within the three year statutory period, his claim is timely under Section 2679(d)(5)(A)
and will be deemed timely pursuant to Section 2401(b).
Accordingly, this Court holds that Mr. Saddler may present his claims for negligence and replevin to the appropriate Federal agency within 60 days after these claims are dismissed.
Based on the foregoing, defendants' motion to dismiss, or in the alternative for summary judgment, shall be denied in part and granted in part. Since Civil Action No. 88-3188 consists solely of common law tort claims against defendant Philip P. D'Ambrosio, Civil Action No. 88-3188 shall be dismissed. An order in accordance with this memorandum opinion is issued herewith.
ORDER - June 28, 1990, Filed
In accordance with the memorandum opinion issued herewith, and for the reasons stated therein, it is this 28th day of June, 1990,
1) defendant's motion to dismiss, or in the alternative, for summary judgment shall be granted in part and denied in part;
2) the only viable claims to be litigated before this Court are plaintiff's Fourth Amendment Bivens claims. All other claims shall be dismissed; and
3) since no viable claims remain in Civil Action No. 88-3188, Civil Action No. 88-3188 shall be dismissed with prejudice.