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Lazo v. United States

October 9, 2007


The opinion of the court was delivered by: James C. Francis IV United States Magistrate Judge


Jesus Lazo brings this action under the Federal Tort Claims Act (the "FTCA"), 28 U.S.C. §§ 1346(b), 1402(b), 2401(b), 2671-2680, and pursuant to the principles established in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging that he was wrongly arrested and detained in connection with charges that he had violated the terms of special parole. The parties consented to proceed before me for all purposes pursuant to 28 U.S.C. § 636(c). The defendant United States of America (the "Government") has moved to dismiss the complaint for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure or, in the alternative, for summary judgment under Rule 56. The plaintiff, in turn, has cross-moved for summary judgment. Because this Court lacks jurisdiction over the plaintiff's claims, the Government's motion to dismiss is granted, and the plaintiff's cross-motion is denied.


On January 4, 1989, in the United States District Court for the Southern District of Texas, Jesus Lazo was convicted after pleading guilty to federal narcotics and money laundering charges. (Judgment and Probation/Commitment Order dated Feb. 21, 1989 ("Judgment"), attached as Exh. A to Declaration of Sharon A. Gervasoni dated June 20, 2007 ("Gervasoni Decl.")). He was sentenced to five years in prison, to be followed by five years special parole.*fn1 (Judgment). Taking into account jail credit time, the plaintiff's term of incarceration was due to expire on November 16, 1993. (Sentence Monitoring Computation Data, attached as Exh. B to Gervasoni Decl., at 2). On January 16, 1991 , Mr. Lazo, who was a native of Cuba, was paroled to the Immigration and Naturalization Service (the "INS") for detention pending deportation. (Certificate of Parole dated Dec. 20, 1990, attached as Exh. C to Gervasoni Decl.). However, the INS did not deport the plaintiff and, instead, released him from detention in March 1994. (Deposition of Jesus Lazo ("Lazo Dep."), excerpts attached as Exh. A to Declaration of Pierre G. Armand dated June 22, 2007 ("Armand Decl."), at 125). At that time, the plaintiff was provided with no information with respect to his special parole term. After release, Mr. Lazo resided briefly with a sponsor in Florida and then moved to New York. (Lazo Dep. at 129-32). He never reported to any parole or probation authorities.

In July 1998, prior to expiration of the plaintiff's term of special parole, Senior United States Probation Officer Gilbert J. Mireles commenced an investigation because Mr. Lazo had failed to report for supervision. (Declaration of Gilbert J. Mireles dated June 22, 2007 ("Mireles Decl."), ¶ 3). Unable to locate the plaintiff, Officer Mireles advised the United States Parole Commission (the "Commission") that Mr. Lazo could not be found and sought guidance. (Mireles Decl., ¶¶ 4-6). At the Commission's request, Officer Mireles submitted a violation report, and the Commission then issued a warrant for the arrest of Mr. Lazo on September 21, 1998. (Mireles Decl., ¶¶ 7-9 & Exhs. B, C; Gervasoni Decl., Exh. F). The plaintiff was taken into custody on September 30, 2004. (Mireles Decl., ¶ 9; Gervasoni Decl., Exh. G).

A parole revocation hearing was held before a Commission hearing examiner on February 23, 2005. (Hearing Summary, attached as Exh. M to Gervasoni Decl., at 1). The examiner found that "[t]here is no information available to indicate that [Mr. Lazo] ever received a copy of a special parole term certificate or that he was aware that he was to report upon his release from INS custody." (Hearing Summary at 3). Accordingly, the examiner recommended that Mr. Lazo not be found to have violated parole, that he be reinstated to the term of special parole which had expired, and that he be released with no further conditions. (Hearing Summary at 3). The Commission adopted these recommendations, and the plaintiff was released from custody on March 4, 2005. (Notice of Action, attached as Exh. N to Gervasoni Decl.; Notice of Release and Arrival, attached as Exh. A to Amended Complaint).

Thereafter, Mr. Lazo filed the complaint in this action, alleging that the United States and six John Doe defendants had violated his constitutional rights, had negligently caused him harm, had falsely arrested and imprisoned him, and had intentionally inflicted emotional distress upon him. The Government now moves to dismiss on the grounds that the Court lacks jurisdiction over both the FTCA and the constitutional claims. In the alternative, the Government seeks summary judgment on the basis that it had probable cause to arrest Mr. Lazo and to detain him pending a parole revocation hearing.


"The waiver of sovereign immunity is a prerequisite to subject-matter jurisdiction." Presidential Gardens Associates v. United States, 175 F.3d 132, 139 (2d Cir. 1999). Thus, the United States is immune from suit absent an express waiver of sovereign immunity, as are federal government agencies and officials when acting in their official capacities. See Lehman v. Nakshian, 453 U.S. 156, 160-61 (1981); Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994). Even when the United States waives sovereign immunity, it may do so in a limited or conditional manner: the United States retains its immunity except "'as it consents to be sued . . ., and the terms of its consent to be sued in any court define the court's jurisdiction to entertain the suit.'" United States v. Mitchell, 445 U.S. 535, 538 (1980) (quoting United States v. Sherwood, 312 U.S. 584, 586 (1941)). "'On a motion invoking sovereign immunity to dismiss for lack of subject matter jurisdiction, the plaintiff bears the burden of proving by a preponderance of [the] evidence that [subject matter] jurisdiction exists.'" Chayoon v. Chao, 355 F.3d 141, 143 (2d Cir. 2004) (quoting Garcia v. Akwesasne Housing Authority, 268 F.3d 76, 84 (2d Cir. 2001)).

A. Negligence Claims

In enacting the FTCA, Congress waived the sovereign immunity of the United States with respect to claims arising from "the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." 28 U.S.C. § 1346(b)(1). Thus, "[t]he [FTCA] is a limited waiver of sovereign immunity, making the Federal government liable to the same extent as a private party for certain torts of employees acting within the scope of their employment. United States v. Orleans, 425 U.S. 807, 813 (1976).

However, conduct that falls within the FTCA's "discretionary function" exception is beyond the reach of the statute and is therefore not subject to the waiver of sovereign immunity. That exception exempts claims "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. § 2680(a).

The Supreme Court has established a two-step inquiry for analyzing whether the exception applies. First, it must be determined whether the conduct violated a legal mandate: "[i]f the employee violates [a] mandatory regulation, there will be no shelter from liability because there is no room for choice and the action will be contrary to policy." United States v. Gaubert, 499 U.S. 315, 324-25 (1991). The plaintiff suggests that there are two grounds on which this prong of the test is satisfied. He argues that "[t]he exception does not apply to the breach of duty so egregious that the officials performing and failing to perform, had no discretion to function as they did." (Memorandum of Law in Support of the Plaintiff's Motion for Summary Judgment and in Opposition to the Defendants [sic] Motion to Dismiss and for Judgment ("Pl. Memo.") at 29). But this contention runs contrary to the statutory language indicating that the exception applies even where discretion is abused.

The plaintiff also asserts that the Government violated its mandatory duty under 28 C.F.R. § 2.29 to issue a certificate of parole. According to § 2.29(a), "[a] grant of parole shall not be deemed to be operative until a certificate of parole has been delivered to the prisoner." This section, however, applies to regular parole, which, as discussed above at note 1, is distinct from the special parole term to which Mr. Lazo was sentenced: first, special parole follows the term of imprisonment, while regular parole entails release before the end of the term; second, special parole was imposed, and its length selected, by the district judge rather than by the Parole Commission; third, if the conditions of special ...

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