McCloskey v. Mueller

United States Court of Appeals
For the First Circuit

No. 05-2690

THOMAS S. McCLOSKEY AND KEVIN P. McCLOSKEY,
AS CO-ADMINISTRATORS OF THE ESTATE OF PHILIP McCLOSKEY,

Plaintiffs, Appellants,

v.

ROBERT S. MUELLER III, IN HIS CAPACITY AS DIRECTOR OF
THE FEDERAL BUREAU OF INVESTIGATION, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Reginald C. Lindsay, U.S. District Judge]

Before

Selya and Lipez, Circuit Judges,
and Saylor,* District Judge.

Kevin J. Reddington for appellants.
Carol L. Shea, Special Assistant United States Attorney
(Chief, Civil Division, District of Vermont), with whom David V.
Kirby, United States Attorney (District of Vermont), was on brief,
for federal appellees.
Gary Lee Sampson on brief pro se ipso.

May 16, 2006

_________
* Of the District of Massachusetts, sitting by designation.
 SELYA, Circuit Judge. This appeal arises out of a tragic

series of events that culminated in the murder of Philip McCloskey.

The co-administrators of the victim's estate sought damages from

both the federal government and the murderer, Gary Lee Sampson.

The district court dismissed their action. See McCloskey v.

Mueller, 385 F. Supp. 2d 74, 88 (D. Mass. 2005). Because there is

no principled way that the frontiers of tort law can be expanded to

encompass the theory of liability that the co-administrators have

premised on these horrific facts, we affirm the order of dismissal.

I. BACKGROUND

Because the district court disposed of this case on a

motion to dismiss, see Fed. R. Civ. P. 12(b), we glean the relevant

facts from the co-administrators' amended complaint (assuming,

without determining, that those facts are true), supplemented by

certain undisputed items.

On July 23, 2001, Sampson telephoned the Boston office of

the Federal Bureau of Investigation (FBI) and spoke with an FBI

employee, William H. Anderson. Sampson explained to Anderson that

he was in Abington, Massachusetts; that he was wanted for armed

robbery; and that he wished to surrender to the authorities.

Anderson disconnected the call either accidentally or purposely —

the amended complaint contemplates both possibilities — and made no

attempt to reconnect it, investigate it, or report it to any other

law enforcement officer.

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 Sampson never called back; instead, after spending

several hours fruitlessly awaiting the FBI's arrival in Abington,

he embarked upon a "killing spree." The spree began the next day

when Sampson abducted and murdered a complete stranger, Philip

McCloskey. Before local authorities finally apprehended him on

July 31, Sampson had killed two other men as well.

Sampson eventually pleaded guilty to a federal charge of

carjacking resulting in Philip McCloskey's death. See 18 U.S.C. §

2119(3). Following a penalty-phase trial, the district court

imposed a death sentence. See United States v. Sampson, 300 F.

Supp. 2d 275 (D. Mass. 2004). That sentence is currently on

appeal.

After initially denying that a Sampson-initiated

telephone call ever took place, Anderson finally admitted the

call's occurrence. In due season, Thomas and Kevin McCloskey, co-

administrators of Philip McCloskey's estate, notified the United

States, see 28 U.S.C. § 2675(a), and then commenced a civil action

in the United States District Court for the District of

Massachusetts. They asserted damages claims under both the Federal

Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680, and 42

U.S.C. § 1983, against the United States, the FBI, Robert S.

Mueller III, in his official capacity as director of the FBI, and

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Anderson (collectively, the federal defendants).1 They also

advanced pendent state-law claims for wrongful death against

Sampson.

The federal defendants filed an omnibus motion to

dismiss. See Fed. R. Civ. P. 12(b)(1), (6). Sampson likewise

moved to dismiss the claims against him. The co-administrators

filed a timely opposition.

After pondering the matter, the district court dismissed

the case in toto. See McCloskey, 385 F. Supp. 2d at 88. The court

held that, under the FTCA, the United States was the only proper

defendant and dismissed the tort claims against the FBI, Mueller,

and Anderson for that reason. See id. at 77-78. It then concluded

that it was without subject-matter jurisdiction over the FTCA

claims against the United States because of the discretionary

function exception, see id. at 79-81 (citing 28 U.S.C. § 2680(a)),

and, alternatively, because the government would not be liable

under Massachusetts law had it been acting as a private person in

the same or similar circumstances, see id. at 81-85 (citing 28

U.S.C. § 1346(b)). The court dispatched the section 1983 claims

1
Despite naming the FBI as a defendant, the amended complaint
does not textually set forth any claim against the FBI; all claims
against the federal defendants are directed only to the United
States, Mueller, and Anderson. Based on other filings, the
district court interpreted each of these claims as asserted against
the FBI as well. See McCloskey, 385 F. Supp. 2d at 78 n.3.
Because no party contests that interpretation, we treat the claims
in a similar fashion.

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for failure to allege any action under color of state authority.

Id. at 87. Once it had dismissed the federal claims, the court

declined to exercise supplemental jurisdiction over the state-law

claims against Sampson. Id. at 88 (citing 28 U.S.C. § 1367(c)(3)).

This timely appeal ensued.

II. DISCUSSION

We begin our analysis by acknowledging the applicable

standard of review. We then address, in turn, the FTCA and section

1983 claims. Finally, we touch upon the dismissal of the claims

against Sampson.

A. Standard of Review.

The district court dismissed the FTCA counts for want of

subject-matter jurisdiction and the section 1983 counts for failure

to state an actionable claim. Although these rulings derive from

different subsections of Rule 12(b), compare Fed. R. Civ. P.

12(b)(1), with Fed. R. Civ. P. 12(b)(6), our standard of review

sounds the same familiar refrain.

Under either rule, we review the lower court's dismissal

order de novo, accepting the plaintiffs' well-pleaded facts as true

and indulging all reasonable inferences to their behoof. See,

e.g., Dominion Energy Brayton Point, LLC v. Johnson, 443 F.3d 12,

16 (1st Cir. 2006) (Rule 12(b)(1)); Redondo-Borges v. U.S. Dep't of

Hous. & Urban Dev., 421 F.3d 1, 5 (1st Cir. 2005) (Rule 12(b)(6)).

We are not wedded to the lower court's rationale and may affirm an

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order of dismissal on any basis made apparent by the record. See

Gabriel v. Preble, 396 F.3d 10, 12 (1st Cir. 2005).

B. The FTCA Claims.

"It is beyond cavil that, as the sovereign, the United

States is immune from suit without its consent." Muirhead v.

Mecham, 427 F.3d 14, 17 (1st Cir. 2005). The FTCA embodies one

instance of such consent. It comprises a limited waiver of the

federal government's sovereign immunity, Shansky v. United States,

164 F.3d 688, 690 (1st Cir. 1999), and grants federal courts

jurisdiction over claims against the United States that fall within

its ambit. This includes claims

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).

Here, the co-administrators assert in substance that the

federal defendants were negligent in failing to apprehend Sampson

after his attempted surrender.2 That negligence, they posit,

2
To the extent that the co-administrators alleged, and the
district court dismissed, FTCA claims based on theories of
negligent supervision or inadequate technology, we consider any
potential challenges abandoned. See United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in a perfunctory
manner, unaccompanied by some effort at developed argumentation,
are deemed waived.").

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resulted in Philip McCloskey's death. Although the co-

administrators name various federal defendants in these counts, the

United States is the only proper defendant in such an action. See

28 U.S.C. §§ 1346(b), 2674, 2679; see also Roman v. Townsend, 224

F.3d 24, 27 (1st Cir. 2000). Consequently, the district court

correctly held that no FTCA claim can lie against the FBI, Mueller,

or Anderson.

Against this backdrop, we turn to the FTCA claims against

the United States.3 To survive, an FTCA claim must successfully

surmount the jurisdictional hurdle erected by 28 U.S.C. § 1346(b).

That section restricts the liability of the United States to

circumstances in which "a private person would be liable . . . in

accordance with the law of the place where the act or omission

occurred." Id. Since every relevant event in this case occurred

in Massachusetts, the substantive law of that jurisdiction

constitutes the "law of the place" for present purposes. Thus, the

co-administrators must identify some basis in Massachusetts law for

holding a private party liable in tort for acts or omissions

comparable to those they attribute to the FBI and its

3
Although the FTCA is mentioned explicitly only in count 1 of
the amended complaint, we treat the state-law wrongful death claims
against the federal defendants (counts 4-6) as coming under the
umbrella of the statute. This recasting benefits the co-
administrators, as the FTCA provides the exclusive remedy against
the United States for wrongful death. See 28 U.S.C. § 2679(a)-(b).

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functionaries. See Bolduc v. United States, 402 F.3d 50, 56 (1st

Cir. 2005).

In appraising the height of this hurdle, it is important

to frame the scope of our inquiry. The search for analogous state-

law liability is circumscribed by the explicit language of the

FTCA, which restricts that search to private liability. See Sea

Air Shuttle Corp. v. United States, 112 F.3d 532, 537 (1st Cir.

1997). In other words, we must look for "some relationship between

the governmental employee[] and the plaintiff to which state law

would attach a duty of care in purely private circumstances." Id.

(citation and internal quotation marks omitted).

The flip side of this coin is that we are not at liberty

to derive analogues from instances in which state law enforcement

officers — and only state law enforcement officers — would be

liable under state law. In the FTCA milieu, "the federal

government does not yield its immunity with respect to obligations

that are peculiar to governments or official-capacity state actors

and which have no private counterpart in state law." Bolduc, 402

F.3d at 57.

Refined to bare essence, our obligation is to appraise

the height of the section 1346(b) hurdle through a narrowed lens

and ask only whether, under Massachusetts law, a private party who

is approached by a fugitive seeking to turn himself in would be

guilty of actionable negligence if he did nothing in response and

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the fugitive thereafter committed a series of violent crimes. On

the pleadings before us (which do not allege any special

circumstances), we answer that isthmian question in the negative.

In Massachusetts, "a tort plaintiff must show that (1)

the defendant owed him a duty, (2) the defendant breached that

duty, (3) the breach constituted a proximate cause of the ensuing

harm, and (4) the breach caused actual injury." Fithian v. Reed,

204 F.3d 306, 308 (1st Cir. 2000). Massachusetts courts have

recognized the generic applicability of relevant Restatement of

Torts principles to the first step of this quadripartite algorithm.

See Mosko v. Raytheon Co., 622 N.E.2d 1066, 1069-70 & n.7 (Mass.

1993); Jean W. v. Commonwealth, 610 N.E.2d 305, 315 (Mass. 1993)

(Liacos, C.J., concurring); see also Rakes v. United States, 352 F.

Supp. 2d 47, 58-60 (D. Mass. 2005), aff'd, 442 F.3d 7 (1st Cir.

2006). It is on that step that our subsequent discussion will

focus; after all, if a private person under the same circumstances

would owe no duty to a victim, there would be no state-law

liability (and, thus, no subject-matter jurisdiction over the co-

administrators' FTCA claims). See Newlin v. New Eng. Tel. & Tel.

Co., 54 N.E.2d 929, 931 (Mass. 1944) (deeming it "settled" that "if

the defendant owed no duty of care to the plaintiff . . . there

could be no actionable negligence on [the defendant's] part").

Generally speaking, a defendant's duty is more limited

when negligence consists of an omission rather than an act of

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commission. See Carrier v. Riddell, Inc., 721 F.2d 867, 868-69

(1st Cir. 1983) (applying Massachusetts law). So too, as a general

matter, "[t]here is no duty . . . to control the conduct of a third

person as to prevent him from causing physical harm to another."

Restatement (Second) of Torts § 315 (1965) (Restatement); see

Mosko, 622 N.E.2d at 1069-70 & n.7. These generalities fairly

describe the situation in the case at hand. That is not the end of

the matter, however, because there are at least two exceptions to

the general rule that can be distilled from these principles. The

co-administrators' FTCA claims necessarily stand or fall on the

applicability vel non of these exceptions.

The first exception comes into play when "a special

relation exists between the actor and the [plaintiff] which gives

[the plaintiff] a right to protection." Restatement § 315; see

Jean W., 610 N.E.2d at 315 (Liacos, C.J., concurring). Emblematic

of this type of special relation is the relationship of, say, a

common carrier to a passenger or an innkeeper to a guest.4 See

Restatement § 314A. This exception also may have some bearing when

one "takes . . . custody of [the plaintiff] under circumstances

[that] deprive the [plaintiff] of his normal opportunities for

protection." Id. That duty may well confer upon the custodian a

4
Take, for example, an innkeeper, who may be said to assume a
duty to use reasonable care to secure the demised premises and,
thus, may be held liable for the harm done by a marauder if he
defaults on that duty. See, e.g., Fund v. Hotel Lenox of Boston,
Inc., 635 N.E.2d 1189, 1190 (Mass. 1994).

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duty to protect his charge from the conduct of third persons.5 See

id. § 320.

The second exception arises when "a special relation

exists between the actor and the third person which imposes a duty

upon the actor to control the third person's conduct." Id. § 315;

see Jean W., 610 N.E.2d at 315 (Liacos, C.J., concurring).

Traditionally, parent-child, master-servant, and possessor-licensee

relationships fit into this taxonomy.6 See Restatement §§ 316-318.

In the same vein, one may acquire a duty to control a third person

if he "takes charge" of that third person and "knows or should know

[that the third person is] likely to cause bodily harm to others if

not controlled."7 Id. § 319.

In the absence of a special relationship sufficient to

trigger one of these exceptions, a private party is not liable for

failing, either intentionally or inadvertently, to exercise control

5
Take, for example, a school, which may be said to assume a
duty of care toward its students and, thus, may be held liable for
foreseeable harm that comes to them if it defaults on that duty.
See, e.g., Marquay v. Eno, 662 A.2d 272, 279 (N.H. 1995)
(collecting cases).
6
Take, for example, a parent, who may be said to assume a duty
of reasonable care to prevent his minor child from inflicting harm
on others and, thus, may be held liable for the harm done by the
child if he defaults on that duty. See, e.g., Caldwell v. Zaher,
183 N.E.2d 706, 707 (Mass. 1962).
7
Take, for example, a jailer, who may be said to assume a duty
of reasonable care to control a prisoner in his custody and, thus,
may be held liable to one whom the prisoner harms if he (the
jailer) defaults on that duty. See, e.g., Buchler v. State, 853
P.2d 798, 801-02 (Or. 1993).

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over the actions of a third party so as to protect others from

harm. Id. § 315 cmt. b. This is so even if the prospective harm

is substantial and "the actor realizes that he has the ability to

control the conduct of [the] third person, and could do so with

only the most trivial of efforts." Id.

It follows inexorably from the foregoing that, for a duty

to attach here, the amended complaint must reveal the existence of

a special relationship between either Anderson (and, thus, the FBI)

and Philip McCloskey or between Anderson (and, thus, the FBI) and

Sampson.

It is readily evident that, at the times material hereto,

no special relationship had been forged between Anderson (or the

FBI) and the decedent. Prior to his murder, Philip McCloskey was

a random member of the public at large. Neither Anderson nor the

FBI had any reason to know that he existed. He occupied no special

position that might be deemed even faintly analogous to a common

carrier's passenger or an innkeeper's guest. Nor did Anderson or

the FBI "take custody" of Philip McCloskey in any way, shape, or

form.

So viewed, this case is easily distinguished from Mulloy

v. United States, 884 F. Supp. 622 (D. Mass. 1995), much bruited by

the co-administrators. There, an officer's wife living on an army

base was raped and murdered by an enlistee. The court, applying

Illinois law, recognized a special relationship between the army

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and the victim, given her status as the army's invitee and a tenant

on the base. See id. at 632. That relationship furnished a

modicum of support for a theory by which the United States might be

held liable under state law. See id. Here, however, as we have

said, neither Anderson nor the FBI had any prior relationship with

Philip McCloskey, nor did he ever act in reliance on any invitation

by them.

To say more on this point would be to paint the lily. We

hold, without serious question, that no special relationship

existed between Anderson or the FBI, on the one hand, and Philip

McCloskey, on the other hand, sufficient to give rise to a duty

under Massachusetts tort law either to protect McCloskey or to ward

off his slayer.

The relationship between Sampson and Anderson is not

quite so easily dismissed. There is some semblance of a pre-murder

tie, as Sampson's telephone call to Anderson linked the two men,

however fleetingly (and, thus, linked Sampson and the FBI). We

nonetheless conclude that this solitary link is inadequate to give

rise to a duty on Anderson's part to control Sampson.

Anderson and Sampson were not in a sustained relationship

akin to that enjoyed by a parent and child, a master and servant,

or a possessor and licensee. The question, then, boils down to

whether it can be said, under the generous pleading standard

applicable at the motion-to-dismiss stage, that Anderson (and,

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thus, the FBI) took charge of Sampson in such a way or to such an

extent that his activities could give rise to a duty to exercise

control over Sampson. Cf. Sheridan v. United States, 487 U.S. 392,

401 (1988) (recognizing possible liability under Maryland law based

in part on the government's voluntary undertaking "to provide care

to a person who was visibly drunk and visibly armed").

While we have been unable to find a Massachusetts case

squarely on point, our analysis is informed by the state courts'

warm reception of applicable Restatement principles. Those

principles counsel against finding a duty based on so fragile a

connection as exists here. See Restatement §§ 315-319. Moreover,

four former justices of the Massachusetts Supreme Judicial Court

(which, at full strength, numbers seven justices) have agreed that

"[i]n the absence of special assurances having been given, the law

imposes no duty on a private individual carefully to extinguish a

fire he did not cause, or carefully to remove an intoxicated

motorist from the highway whose intoxication or presence on the

highway he did not bring about." Jean W., 610 N.E.2d at 312

(Liacos, C.J., concurring) (alternation in original) (quoting Cyran

v. Town of Ware, 597 N.E.2d 1352, 1360 (Mass. 1992) (O'Connor, J.,

concurring, with whom Nolan and Lynch, JJ., joined)). It would

seem to follow that a private individual who has refrained from

giving any assurances has no legal duty to keep the public safe

from a felon with whom he has had only the briefest contact.

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 No more need be said. We are confident, given these

telltales and given the absence of any allegation that special

assurances were offered, that Anderson, if a purely private actor,

would not have acquired a duty to control Sampson merely by his

reception of Sampson's brief telephone call. After all, Anderson

took no action aimed at taking charge of Sampson. His failure to

act, while lamentable, is too amorphous a foundation on which to

erect a duty to control.8 Cf. Bergmann v. United States, 689 F.2d

789, 796 (8th Cir. 1982) (concluding that, under Restatement § 319,

the government did not "take charge" of a federally protected

witness and, thus, had no duty to control the witness's conduct).

The principal cases on which the co-administrators rely

do not mitigate the force of this reasoning. None of them involves

a fact pattern that is substantially similar (or even fairly

analogous) to the fact pattern here. By the same token, none of

them evinces a connection between the parties as ephemeral as

Anderson's (and the FBI's) fleeting connection with Sampson. See,

e.g., Marin v. United States, 814 F. Supp. 1468, 1485 (E.D. Wash.

1992) (finding a special relationship between INS agents and a

8
Because there is no special relationship here, we need not
address the secondary issue of foreseeability. See Restatement §
319 (noting that the duty assumed by "one who takes charge of a
third person" only accrues when "he knows or should know [that the
person is] likely to cause bodily harm to others if not
controlled"); see also Jean W., 610 N.E.2d at 315 (Liacos, C.J.,
concurring) (acknowledging that a duty arising from a special
relationship under Restatement § 320 would only inure to the
benefit of foreseeable victims).

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detainee whom they released from custody to act as an informant);

Williams v. United States, 450 F. Supp. 1040, 1044 (D.S.D. 1978)

(concluding that V.A. hospital, knowing of patient's propensity for

violence and having agreed to notify local authorities upon his

release, undertook a duty that it breached when it discharged the

patient without notice and he committed a murder a day later).

These cases depend upon the presence of numerous facts that are

foreign to the record in the case at bar: among these disparities,

the most salient distinction is that, unlike the detained alien in

Marin or the hospital patient in Williams, the instrument of harm

here (Sampson) was never in the government's charge.9

In a last-ditch effort to stem the tide, the co-

administrators propose that the issue of whether government actors

"took charge" of a third person must be decided by a trier of fact.

That proposition is incorrect. When the raw facts are undisputed,

"[t]he existence of a duty is typically a question of law, not of

fact." Carrier, 721 F.2d at 868. This case fits within that mold.

We have taken the well-pleaded facts in the light most favorable to

the co-administrators — and those facts, even if entirely true, do

not show the existence of an actionable duty. No more is exigible

9
The co-administrators also cite Estate of Davis v. United
States, 340 F. Supp. 2d 79 (D. Mass. 2004). The court there found
that a special relationship between the government and its
informants created "a duty owed to the general public to control
them." Id. at 93. That finding is context-specific, and the
relationship between the FBI and Sampson is far too attenuated to
evoke a fair comparison.

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to sustain a dismissal of the FTCA counts. See 28 U.S.C. §

1346(b).

C. The Section 1983 Claims.

The co-administrators also contest the dismissal of their

section 1983 claims against the federal defendants. That statute's

reach is limited to "person[s] who [act] under color of any

statute, ordinance, regulation, custom, or usage, of any State or

Territory or the District of Columbia." 42 U.S.C. § 1983. Thus,

to plead a viable section 1983 claim, a complaint must allege

action under color of state law. See, e.g., Redondo-Borges, 421

F.3d at 7; Rogan v. City of Boston, 267 F.3d 24, 27 (1st Cir.

2001). Given the nature of this requirement, a section 1983 claim

ordinarily will not lie against a federal actor. See District of

Columbia v. Carter, 409 U.S. 418, 424-25 (1973) (recognizing that

"actions of the Federal Government and its officers are at least

facially exempt from [section 1983's] proscriptions"); Redondo-

Borges, 421 F.3d at 6 (similar).

Here, the relevant counts of the amended complaint assign

fault to federal actors functioning as such. They contain no hint

of any tortious activity under color of state authority, nor do

they limn any extraordinary circumstances that might implicate the

federal defendants in state action. Cf. Hampton v. Hanrahan, 600

F.2d 600, 623 (7th Cir. 1979) (explaining that a section 1983 claim

might lie against federal officers who "are engaged in a conspiracy

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with state officials to deprive [the plaintiff's] constitutional

rights").

When pressed, the co-administrators confess that the

amended complaint fails to allege any action by the federal

defendants under color of state law. They asseverate, however,

that the district court should have deferred ruling on their

section 1983 claims until pretrial discovery had run its course.

That asseveration puts the cart before the horse.

When evaluating a motion to dismiss, the trial court must

decide in the first instance whether the plaintiff is entitled to

undertake discovery at all. Rodi v. S. New Eng. Sch. of Law, 389

F.3d 5, 13 (1st Cir. 2004). To reach this plateau, a plaintiff

must carry an entry-level burden: he must sketch, at least in

outline form, the rudiments of a viable claim. See Educadores

Puertorriqueños en Acción v. Hernández, 367 F.3d 61, 68 (1st Cir.

2004). If he succeeds in that endeavor, discovery should be

allowed to give him an opportunity to put some flesh on the bare

bones of that claim. But if he does not succeed in carrying his

entry-level burden, that is the end of the matter. The purpose of

pretrial discovery is not to allow a plaintiff to rummage about in

search of a hitherto unexplicated cause of action. See Bruno &

Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 597 (1st Cir.

1980).

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 In this instance, the co-administrators have not

proffered even the most hazy outline of a viable section 1983

claim. Their attempts to do so, as framed in their amended

complaint, fail to meet even the most abecedarian notice pleading

requirements. See Fed. R. Civ. P. 8(a)(2) (requiring that a

complaint contain "a short and plain statement of the claim showing

that the pleader is entitled to relief"). They are, therefore, not

entitled to discovery. See Nestor Colon Medina & Sucesores, Inc.

v. Custodio, 964 F.2d 32, 39 (1st Cir. 1992) (noting that "it is

only after stating a valid claim that a plaintiff can insist upon

a right to discovery"). In the last analysis, plaintiffs should

not be permitted to conduct fishing expeditions in hopes of

discovering claims that they do not know they have.

Even were we to recharacterize the co-administrators'

constitutional claims under the framework crafted in Bivens v. Six

Unknown Named Agents of FBN, 403 U.S. 388 (1971), and thus sidestep

the "under color of state law" requirement, the claims still would

succumb to the federal defendants' motion. The Bivens doctrine

allows constitutional claims against federal officials, in their

individual capacities, for actions taken under color of federal

law. See id. at 397. But the availability of that doctrine does

not override bedrock principles of sovereign immunity so as to

permit suits against the United States, its agencies, or federal

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officers sued in their official capacities. See Ruiz Rivera v.

Riley, 209 F.3d 24, 28 (1st Cir. 2000).

Here, the co-administrators sued Mueller only in his

official capacity. And although they originally named Anderson as

both an individual-capacity and an official-capacity defendant, the

district court, on the parties' joint motion early in the case,

dismissed all claims against Anderson in his individual capacity.

Having joined in the motion to dismiss, the co-administrators

cannot now appeal the resultant order. See BIW Deceived v. Local

S6, Indus. Union of Marine & Shipbuilding Workers, 132 F.3d 824,

828 (1st Cir. 1997) (recognizing general rule that a party who

unreservedly consents to a judgment waives any right to appeal that

judgment). Consequently, no cognizable Bivens claims lurk in the

penumbra of the amended complaint.

III. CONCLUSION

To recapitulate, we hold (i) that the district court

lacked subject-matter jurisdiction to hear the co-administrators'

FTCA claims,10 and (ii) that the co-administrators have failed to

state any cognizable cause of action under 42 U.S.C. § 1983.

Accordingly, the lower court properly dismissed all the claims

against the federal defendants (including the punitive damages

10
Since we affirm the dismissal of the FTCA counts on private-
person liability grounds, we need not address the district court's
alternative holding anent the discretionary function exception.
See McCloskey, 385 F. Supp. 2d at 79-81.

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claim, which has no independent footing). In so holding, we do not

intend to place our imprimatur upon Anderson's failures. We are,

however, bound both by the terms of the FTCA, which, like all

waivers of sovereign immunity, "must not be enlarged beyond such

boundaries as its language plainly requires," United States v.

Horn, 29 F.3d 754, 762 (1st Cir. 1994), and by the circumscriptions

of section 1983.

We need go no further. Without any federal claims left

in the case, the lower court did not abuse its discretion in

declining to exercise supplemental jurisdiction over the state-law

claims asserted against Sampson. See 28 U.S.C. § 1367(c)(3); see

also Martinez v. Colon, 54 F.3d 980, 990-91 (1st Cir. 1995).

Affirmed.

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