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Wasserman v. Rodacker

July 19, 2007


The opinion of the court was delivered by: Richard W. Roberts United States District Judge


Pro se plaintiff Michael Wasserman filed this action alleging that United States Park Police Officer Denise Rodacker assaulted, battered and imprisoned him and unconstitutionally initiated a criminal prosecution against him. The defendants move to dismiss Wasserman's complaint arguing, among other things, that the court lacks subject matter jurisdiction over his common law claims, and that his constitutional claims fail because Rodacker is entitled to qualified immunity. Wasserman moves for sanctions claiming that certain contentions made in defendants' motion to dismiss do not comport with the requirements of Federal Rule of Civil Procedure 11. Because Wasserman has failed to exhaust administrative remedies for his common law claims and because Rodacker is immune from civil liability for Wasserman's constitutional claims, defendants' motion to dismiss, treated in part as a motion for summary judgment, will be granted. Because action has already been taken regarding the only conduct that warrants consideration of sanctions, Wasserman's motion for sanctions will be denied.


Rodacker saw Wasserman walking his two unleashed dogs in a park in Washington, D.C. She began following him and told him more than once to stop.*fn1 Wasserman continued walking away with his dogs, and responded that he did not want to and did not have to answer Rodacker's questions or talk with her. Rodacker caught up to Wasserman and placed her hand on his left upper arm or shoulder. Rodacker claims she had grabbed Wasserman and he tried to wrench himself out her grip; Wasserman disputes that, claiming he immediately stopped and stood still. Rodacker forced Wasserman's arm behind his back, causing pain in his shoulder, handcuffed him, and placed him under arrest.

Wasserman was booked at a Park Police sub-station for assault on a police officer, D.C. Code § 22-405(a), and having dogs off leash. D.C. Mun. Regs. tit. 24, § 900.3. Because the assault charge was a felony, Wasserman was taken to the Metropolitan Police Department central cell block and held there until the next day, when he was arraigned in the Superior Court for the District of Columbia on charges of violating the dogs off leash regulation. The assault charge was "no-papered" by the U.S. Attorney's office.

Based on these events, on February 21, 2006, Wasserman filed suit in the Superior Court alleging that on February 20, 2005, Rodacker, "acting under color of law but without actual or lawful authority, intentionally, maliciously and without privilege assaulted, battered and imprisoned [him] against the laws of the . . . District [of Columbia] and the Constitution of the United States." (Notice of Removal of Civil Action, Compl. ¶ 2.) The case was removed to this court and the United States was added as a defendant to the action under 28 U.S.C. § 2679(d). The defendants filed a motion under Fed. R. Civ. P. 12(b)(1) to dismiss the complaint for lack of jurisdiction over the common law claims arguing that Wasserman has not exhausted administrative remedies. Defendants also moved under Rule 12(b)(6) to dismiss for failure to state a claim for which relief can be granted, asserting that Rodacker enjoys qualified immunity, and that Wasserman's claims are barred by the doctrine of collateral estoppel*fn2 and a one-year statute of limitations.*fn3

Wasserman has filed a motion for sanctions against defendants' counsel based on contentions made in defendants' motion to dismiss and the attachments to it.



A. Common Law Claims

Under the Federal Employees Liability Reform and Tort Compensation Act of 1988, 28 U.S.C. § 2679(d)(1), "when a federal employee is sued for a wrongful or negligent act, the United States Attorney General, or by designation the United States Attorney in the district where the claim is brought, may certify that the employee was acting at the time within the scope of his or her employment."*fn4 Stokes v. Crss, 327 F.3d 1210, 1213 (D.C. Cir. 2003) (citing 28 C.F.R. § 15.3(a) ("The Federal employee's employing Federal agency shall submit a report to the United States Attorney for the district embracing the place where the civil action or proceeding is brought fully addressing whether the employee was acting within the scope of his office or employment with the Federal Government at the time of the incident out of which the suit arose . . . .")). "Upon certification . . ., any civil action or proceeding commenced upon such claim in a State court shall be removed . . . tothe district court of the United States . . . [and] shall be deemed to be an action . . . brought against the United States under the provisions of this title . . ., and the United States shall be substituted as the party defendant." 28 U.S.C. § 2679(d)(2). In essence, certification "converts the lawsuit into an action against the United States under the Federal Tort Claims Act." Haddon v. United States, 68 F.3d 1420, 1423 (D.C. Cir. 1995).

The FTCA gives district courts "exclusive jurisdiction of civil actions on claims against the United States, for money damages, . . . for injury or loss of property, or 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)(1). Where the act that led to the commencement of a civil action was committed by a law enforcement officer, the FTCA applies to "any claim arising . . . out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution." 28 U.S.C. § 2680(h). However, "[a]n action shall not be instituted upon a claim against the United States . . . unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing . . . ." 28 U.S.C. § 2675(a). The FTCA's exhaustion of administrative remedies requirement is a "jurisdictional prerequisite." Alexander v. United States, Civ. Action No. 06-1190 (EGS), 2006 WL 2788993, at *2 (D.D.C. Sept. 26, 2006); see Davis v. United States, 84 Fed. Appx. 97 (D.C. Cir. 2003) (holding that exhaustion of administrative remedies is a prerequisite to filing an FTCA claim in district court).

Instead of addressing the FTCA's exhaustion requirement, Wasserman claims that because he has not waived his right to trial by jury under the Seventh Amendment, and because the FTCA requires that claims against the government be tried by the Court without a jury, the FTCA should not apply. However, the Seventh Amendment right to trial by jury is not applicable in cases against the United States under the FTCA once the government employee is certified as having acted within the scope of her employment. See Osborn v. Haley, 127 S.Ct. 881, 900 (2007); Kimbro v. Velten, 30 F.3d 1501, 1509 n.4 (D.C. Cir. 1994). As a result, since Wasserman has neither alleged nor established ...

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