UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
ANTHONY BUZZANCA, )
)
Plaintiff, )
)
v. ) Case No. 18-cv-02893 (APM)
)
DISTRICT OF COLUMBIA, et al., )
)
Defendants. )
_________________________________________ )
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
Plaintiff Anthony Buzzanca brings this suit against the District of Columbia (the
“District”), the United States of America, and various John Doe individuals employed by the
United States Bureau of Prisons (“BOP”) and the District of Columbia Department of Corrections
(“DOC”). He alleges that the actions and omissions of various DOC and BOP employees resulted
in his over-detention by several months. The District cross-claims against the United States for
indemnification and contribution. Before the court is the United States’ Motion to Dismiss both
the Amended Complaint and the District of Columbia’s cross-claim. For the reasons that follow,
the court grants the United States’ motion.
II. BACKGROUND
A. Factual Background
On May 19, 2017, Plaintiff was sentenced by Judge Jose Lopez of the Superior Court of
the District of Columbia to twelve months of incarceration following his conviction for one count
of third-degree sex abuse and one count of felony contempt. See Pl.’s First Am. & Suppl. Compl.,
ECF No. 20 [hereinafter Am. Compl.], ¶ 17. At the time of sentencing, Plaintiff was being held at
the D.C. Jail, a facility operated by the DOC. See id. ¶ 11, 18. He had spent approximately 246
days in custody, and so had 119 days left to complete his twelve-month sentence. See id. ¶ 18.
Plaintiff therefore should have been released on or around September 15, 2017. See id. Instead,
he was released 156 days later, on February 8, 2018. See id. ¶¶ 18–19, 21.
B. Procedural Background
Plaintiff filed his original five-count Complaint in the Superior Court of the District of
Columbia against the District and the unknown John Doe DOC individual defendants on
September 28, 2018. See Notice of Removal, ECF No. 1 [hereinafter Notice], Pl.’s Compl., ECF
No. 1-1 [hereinafter Compl.], at 1, 4–9. Because the Complaint contained a federal cause of
action—violation of 42 U.S.C. § 1983—the District removed the case to this court on December
10, 2018. See Am. Compl. ¶ 24; Notice ¶ 2. On June 14, 2019, this court granted the District’s
motion to dismiss the section 1983 claim, but denied the motion as it pertained to all other counts.
See Am. Compl. ¶ 25; Mem. Op. & Order, ECF No. 9, at 3, 5. The District filed an Answer to the
remaining counts on June 24, 2019. See Answer, ECF No. 10.
On June 10, 2020, Plaintiff filed an Amended Complaint, adding the United States and
various John Doe individuals employed by BOP as defendants. See Am. Compl. The District
answered the Amended Complaint on June 24, 2020, and cross-claimed against the United States
for indemnification and contribution. See District of Columbia’s Answer to Pl.’s First Am. &
Suppl. Compl. & Cross-Claim Against the United States, ECF No. 22 [hereinafter D.C.’s
Cross-Claim], at 1, 8.
The Amended Complaint contains eight counts. The present motion concerns Counts VI
through VIII, which Plaintiff brings against the United States and the BOP John Doe Defendants.
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See Am. Compl. ¶¶ 53–69. Count VI alleges that the United States, through the BOP and its
employees, is liable for the intentional torts of false arrest and false imprisonment. Id. ¶¶ 53–58.
Specifically, Plaintiff contends that a BOP agent or employee failed to prevent his over-detention
by various acts or omissions, including failures to: 1) review information provided by DOC needed
to calculate Plaintiff’s release date, 2) contact DOC to ensure it provided the necessary
information, 3) calculate Plaintiff’s release date, 4) calculate Plaintiff’s release date properly,
5) inform DOC of the calculation, or 6) perform one or more of those obligations by committing
some other act of fault that prevented Plaintiff’s timely release. Id. ¶¶ 54–55.
In Count VII, Plaintiff alleges that the United States, by and through the actions of BOP
employees, is liable for intentional infliction of emotional distress. Id. ¶¶ 59–63. Finally, in Count
VIII, Plaintiff asserts a negligence claim against the United States, claiming that BOP employees
owed him a duty “to maintain, review, and process court records provided by the DOC” and to
correctly calculate his release date, and that they breached those duties. Id. ¶¶ 64–69. The
Amended Complaint seeks $500,000 in compensatory damages from the United States, plus
reasonable attorneys’ fees and costs, as well as $100,000 in punitive damages from the individual
John Doe BOP defendants. Id. ¶¶ 37, 58, 69.
On October 19, 2020, the United States filed a motion to dismiss Plaintiff’s claims and the
District’s cross-claim on the ground that the court lacks subject-matter jurisdiction over those
claims. See United States’ Mot. to Dismiss Am. Compl., ECF No. 28, at 1, Mem. of P. & A. in
Supp. of the Unites States’ Mot. to Dismiss, ECF No. 28-1 [hereinafter Def.’s Mot.], at 1. Plaintiff
filed an opposition to the United States’ motion on November 2, 2020. See Pl.’s Mem. of P. & A.
in Opp’n to Def. United States’ Mot. to Dismiss., ECF No. 32 [hereinafter Pl.’s Opp’n]. On
November 6, 2020, the District also filed an opposition to the United States’ motion to dismiss.
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See Def. District of Columbia’s Opp’n to United States’ Mot. to Dismiss, ECF No. 34 [hereinafter
D.C.’s Opp’n]. The United States filed its reply brief on November 13, 2020, see Reply in Further
Supp. of the United States’ Mot. to Dismiss, ECF No. 35 [hereinafter Def.’s Reply], and Plaintiff
filed a supplemental opposition on November 30, 2020, see Pl.’s Suppl. Opp’n to Mot. to Dismiss,
ECF No. 36. The United States’ motion is now ripe for review.
III. LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(1), a party may move to dismiss a claim over
which the court lacks subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). When reviewing a
motion under Rule 12(b)(1), the court must “assume the truth of all material factual allegations in
the complaint and ‘construe the complaint liberally, granting plaintiff the benefit of all inferences
that can be derived from the facts alleged.’” Am. Nat’l Ins. v. FDIC, 642 F.3d 1137, 1139 (D.C.
Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)). To survive a
Rule 12(b)(1) motion, the burden is on the plaintiff to show the court has subject-matter
jurisdiction. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). If the court determines it
does not have jurisdiction, the court must dismiss the claim or action. See Fed. R. Civ. P. 12(h)(3).
IV. DISCUSSION
The United States enjoys immunity from all suits under the doctrine of sovereign
immunity, unless expressly waived by a statute. See United States v. Mitchell, 463 U.S. 206, 212
(1983). The Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671 et seq., is one such statute.
It authorizes private tort actions against the United States “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). The Supreme Court has
“interpret[ed] these words to mean what they say, namely, that the United States waives sovereign
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immunity ‘under circumstances’ where local law would make a ‘private person’ liable in tort.”
United States v. Olson, 546 U.S. 43, 44 (2005). The FTCA also contains various statutory
exceptions to the waiver of sovereign immunity. See generally 28 U.S.C. § 2680. As relevant to
this case, section 2680(h) excludes from the FTCA’s immunity waiver “[a]ny claim arising out of
assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel,
slander, misrepresentation, deceit, or interference with contract rights.” Id. § 2680(h).
The United States argues that Plaintiff’s FTCA claims must be dismissed for two reasons:
1) “Plaintiff’s claims lack any private analogue”—that is, a “private person” could not be held
liable for his over-detention—and 2) his claims “are specifically carved out from the FTCA’s
waiver of sovereign immunity” under § 2680(h). Def.’s Mot. at 4. The District’s cross-claim must
be dismissed for these same reasons, says the United States. Id. at 2. Plaintiff responds: 1) a
private person would be liable for conduct similar to that alleged here under local law, see id. at 5;
2) section 2680(h) presents no impediment because the FTCA expressly waives immunity for the
actions of “investigative or law enforcement officers,” from which his claims arise, see Pl.’s Opp’n
at 3–4; and 3) even if Plaintiff’s false arrest and false imprisonment claims are foreclosed by
§ 2680(h), his claims for negligence and intentional infliction of emotional distress remain
actionable, see id. at 4–6. The District writes to bolster Plaintiff’s third argument—that his claim
is one of “general negligence against the United States, arising from an entirely different duty than
the Government’s duty to refrain from false imprisonment.” D.C.’s Opp’n at 4.
The court begins its discussion with whether BOP employees qualify as “investigative or
law enforcement officers of the United States.” It then turns to the question of whether there exists
a private analogue to Plaintiff’s claims. Because the court finds that the alleged wrongdoing lacks
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a private analogue, it need not address whether Plaintiff’s negligence and emotional distress claims
are distinct from his claims for false arrest and false imprisonment.
A. Investigative or Law Enforcement Officer Exception
As noted, section 2680(h) of the FTCA excludes certain torts from the statutory immunity
waiver, including false arrest and false imprisonment. Within that exclusion though, there lies an
exception. The FTCA provides that,
[W]ith 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.
28 U.S.C. § 2680(h). Put more simply, “the government’s sovereign immunity is [] waived if the
challenged conduct is committed by an ‘investigative or law enforcement officer.’” Ford v.
Mitchell, 890 F. Supp. 2d 24, 34–35 (D.D.C. 2012). The FTCA defines an “investigative or law
enforcement officer” to mean “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.” 28 U.S.C.
§ 2680(h).
The United States asserts that Plaintiff has pleaded no facts to support the plausible
inference that the BOP employees allegedly responsible for Plaintiff’s over-detention qualify as
“investigative or law enforcement officers of the United States.” Def.’s Reply at 3–4. The court
agrees. The employees in question work within the BOP’s Designation and Sentence Computation
Center (“DSCC”). The United States specifically avers that “DSCC employees are not authorized
to conduct searches or seize evidence,” and “although BOP employees do have some limited arrest
authority[,]” that authority is limited and “plainly inapplicable to BOP office staff at the DSCC.”
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Id. at 4. Plaintiff offers no well-pleaded facts or evidence in response. His silence speaks volumes:
Plaintiff effectively concedes that the BOP employees he has sued are not “investigative or law
enforcement officers” under the FTCA.
Even the District tacitly acknowledges the insufficiency of Plaintiff’s pleading, submitting
that “discovery [would be] necessary to determine whether the relevant BOP employees me[e]t
the definition of ‘law enforcement’ officials.” D.C.’s Opp’n at 6 n.2. But “in order to get
jurisdictional discovery[,] a plaintiff must have at least a good faith belief that such discovery will
enable it to show that the court” has jurisdiction over the suit. Caribbean Broad. Sys., Ltd. v. Cable
& Wireless PLC, 148 F.3d 1080, 1090 (D.C. Cir. 1998). Importantly, “a request for jurisdictional
discovery cannot be based on mere conjecture or speculation.” FC Inv. Grp. LC v. IFX Mkts., Ltd.,
529 F.3d 1087, 1094 (D.C. Cir. 2008). Here, neither the District nor Plaintiff offer any reason for
the court to believe that discovery would show that BOP employees whose job it is to compute
sentences have the authority to conduct searches, seizures, or arrest. It seems highly improbable
that they would possess such power. Accordingly, jurisdictional discovery is not warranted.
Plaintiff thus has failed to carry his burden at the pleading stage of showing that “the
government has unequivocally waived its immunity” under the “law enforcement officer”
exception. Hayes v. United States, 539 F. Supp. 2d 393, 397 (D.D.C. 2008). The FTCA’s bar
against causes alleging false imprisonment and false arrest therefore applies here.
B. Private Analogue Requirement
To sidestep the foregoing conclusion, and to keep his case alive against the United States,
Plaintiff argues that he may maintain his negligence and intentional infliction of emotional distress
claims against the United States because neither tort is listed in § 2680(h) and each is distinct from
his false arrest and false imprisonment causes of action. See Pl.’s Opp’n at 4–6. The District
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concurs in this position. See D.C.’s Opp’n at 3–4. The court need not reach this question, however,
as Plaintiff’s claims fail for another reason: there is no private-sector analogue to the government
conduct alleged here.
“The FTCA waives sovereign immunity only ‘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.’” Hornbeck Offshore Transp., LLC v. United States, 569 F.3d
506, 508 (D.C. Cir. 2009) (emphasis added) (quoting 28 U.S.C. § 1346(b)(1)). Thus, in order for
his claims to fit within the FTCA’s waiver of sovereign immunity, Plaintiff must show that “a
private person would be responsible for similar negligence under the laws of the [District of
Columbia].” McGowan v. United States, 825 F.3d 118, 125 (2d Cir. 2016) (quoting Dorking
Genetics v. United States, 76 F.3d 1261, 1266 (2d Cir. 1996)); see also Olson, 546 U.S. at 44
(“[T]he United States waives sovereign immunity [only] ‘under circumstances’ where local law
would make a ‘private person’ liable in tort.”). Plaintiff argues that there is a private analogue in
this case because the United States contracts with private entities, such as the Correctional
Corporation of America, to incarcerate individuals. See Pl.’s Opp’n at 6. The District takes a
different tack. It contends that Plaintiff’s negligence claim is “not based on a federal statute or
any other federally imposed duty[,]” so the United States’ argument that no private analogue exists
is “inapposite to the negligence claims.” See D.C.’s Opp’n at 4. Neither contention is availing.
Courts making the “private person” inquiry in similar cases have uniformly held that “‘[t]he
authority to detain other persons and determine the length of their sentences . . . has no private
analogue.’” Adeboye v. United States, No. 19-cv-3089 (DLF), 2020 WL 5231323, at *2 (D.D.C.
Sept. 1, 2020) (quoting Portillo v. United States, No. 17-cv-394 (JAD), 2018 WL 523363, at *3
(D. Nev. Jan. 22, 2018)); see also Ojo v. United States, No. 16-cv-4112 (MKB), 2020 WL 828076,
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at *14 (E.D.N.Y. Feb. 20, 2020) (finding BOP employees’ alleged negligence in following the
“federal law and regulation and internal agency policy governing the calculation of federal
inmates’ release dates lack[ed] a private analogue”). The Second Circuit’s decision in McGowan
is particularly instructive. There, the court rejected the very argument that Plaintiff makes here—
that “private contractors operating local, state or federal detention facilities could provide the
requisite private analogue” to alleged wrongful confinement by BOP employees. 825 F.3d at 126.
The court observed that Plaintiff had “cite[d] no authority for th[at] proposition,” and even
assuming “private contractors c[ould] be held liable for wrongful confinement under New York
Law[,]” the court explained, “when private prison contractors perform governmental functions
pursuant to contracts with governmental entities, they are not similarly situated to any private
actor.” Id. at 126 (emphasis added). The court reasoned that “[t]he private analogue inquiry asks
whether ‘[p]rivate individuals . . . may create a relationship with third parties that is similar to the
relationship between’ a governmental actor and a citizen, not whether a government contractor
could create such a relationship.” Id. (quoting Olson, 546 U.S. at 47). “Private persons cannot
establish facilities to detain other persons,” the court further explained, “only the government can,
either on its own or through a governmental contractor.” Id. at 127. Accordingly, the court held,
“there [wa]s no private analogue to McGowan’s claim.” Id.; see also Adeboye, 2020 WL 5231323,
at *2 (“Private individuals do not perform duties analogous to the administration of criminal
sentences that deprive other citizens of their liberty.”); cf. Warren v. United States, 244 F. Supp.
3d 1173, 1221–22 (D.N.M. 2017) (noting the difficulty of finding analogous private conduct for
‘quasi-legislative’ actions such as where “law enforcement officials . . . are required to make
arrests”). McGowan’s reasoning applies squarely here. Plaintiff’s claim rests on his wrongful
detention, and only the government has the power to detain.
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Even if, generally speaking, private prisons could supply an analogue to the government
function of incarcerating individuals, that equivalence collapses when applied to the specific
conduct alleged here. Plaintiff avers that BOP employees acted tortiously by miscalculating the
time remaining on his sentence or by failing to effectively communicate with DOC to convey a
proper calculation. See Am. Compl. ¶¶ 54–55. Neither Plaintiff nor the District, however, have
put forward any facts to support the notion that privately contracted prisons are involved in
calculating release dates, communicating about release date determinations, or anything similar in
the private sector. Thus, there is no private analogue to Plaintiff’s particular theory of over-
detention.
The District’s argument fares no better. It insists that the private person inquiry does not
apply in this case because Plaintiff’s claims do not rest on the violation of a federal statute. See
D.C.’s Opp’n at 4–5. For this proposition, the District relies on the D.C. Circuit’s opinion in
Hornbeck Offshore Transportation, LLC v. United States, 569 F.3d at 506. There, the court held
that Hornbeck could not bring its claims under the FTCA because they arose “purely out of a
federal statutory scheme that ha[d] no local analog.” Id. at 508. Because Plaintiff’s claims in this
case are not “based upon a federal statute or any other federally imposed duty,” the District argues,
“the ‘no private analogue’ argument as articulated in Hornbeck is inapposite to the negligence
claims advanced by [] Buzzanca.” D.C.’s Opp’n at 5. Not so.
This court does not read Hornbeck to say that if the United States does not violate a federal
statute there is no private analogue requirement. Such an interpretation would run counter to the
text of the FTCA. On its face, the statute requires that sovereign immunity only be waived “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)
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(emphasis added); see also 28 U.S.C. § 2674 (providing that the United States is liable “in the
same manner and to the same extent as a private individual under like circumstances”). The private
analogue requirement is thus built into the text of the FTCA; it is not applicable only when the
alleged tort rests on a violation of federal law. See Olson, 546 U.S. at 46–47 (describing the scope
of the “private individual” inquiry).
Finally, the District argues that if the United States’ immunity argument is accepted, “it
would prevent all federal prisoners from bringing over-detention cases against the United States
based on a claim that their sentence was miscalculated by the BOP.” D.C. Opp’n at 5. The court
need not grapple with that contention. It suffices for present purposes to say that, in this case,
neither Plaintiff nor the District have articulated “like circumstances” in which a private individual
could be held liable for the tortious acts alleged here. Olson, 546 U.S. at 46.
* * *
In sum, Plaintiff has not plausibly alleged that the United States has waived its sovereign
immunity because DSCC employees are “investigative or law enforcement officers of the United
States.” 28 U.S.C. § 2680(h). Nor has he shown that DSCC employees’ alleged conduct makes
the United States liable “in the same manner and to the same extent as a private individual under
like circumstances.” 28 U.S.C. § 2674. Therefore, Plaintiff’s claim and the District’s cross-claim
against the United States are dismissed for lack of subject-matter jurisdiction.
V. CONCLUSION AND ORDER
For the foregoing reasons, the court grants the United States’ Motion to Dismiss.
Counts VI through VIII of the Amended Complaint, see Am. Compl. ¶¶ 53-69, as well as the
District’s cross-claim against the United States, see D.C.’s Cross-Claim, are hereby dismissed.
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Plaintiff’s Motion to Amend and Supplement the Complaint, ECF No. 37, is therefore denied as
moot.
Dated: March 2, 2021 Amit P. Mehta
United States District Court Judge
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