Hansen v. Lappin ( 2011 )

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SCOTT KELLY HANSEN,
Plaintiff, :
v. : Civil Action No. 10-1254 (CKK)
HARLEY G. LAPPIN, et al. ,
Defendants.
MEMORANDUM OPINION
This matter is before the C0urt on defendants’ motion to dismiss or, in the alternative for
summary judgment. For the reasons discussed below, the motion will be granted.
I. BACKGROUND
The Office of Enforcement Operations ("OEO"), Criminal Division, United States
Department of Justice ("DOJ"), operates the Federal Witness Security Program ("Program").
Mem. of P. & A. in Supp. of Fed. Defs.’ Mot. to Dismiss or in the A1temative for Summ. J.
("Defs.’ Mem."), Decl. of Paul M. O’Brien ("O’Brien Decl.")1l l. The Program "provide[s] for
the safe and covert housing and movement of govemment witnesses . . . whose lives have been
placed in danger by virtue of their being witnesses . . . in legal proceedings against any person(s)
alleged to have participated in organized criminal activity or other serious offenses." Id. ,
O’Brien Decl. 11 4; see 18 U.S.C. § 352l(a)(l) (authorizing the Attorney General "to provide for
the relocation and other protection of a witness . . . for the Federal Government or for a State
government in an official proceeding concerning an organized criminal activity or other serious
offense"). "OEO employees perform decision making functions such as approving admissions to
the Program and acting as an oversight, liaison and ombudsman authority." Defs.’ Mem.,
O’Brien Decl. 11 5. Federal Bureau of Prisons ("BOP") officials manage the physical custody of
imprisoned government witnesses, and United States Marshals Service ("USMS") personnel
handle witnesses who are not imprisoned. Id., O’Brien Decl. 11 5. The Attorney General "shall
take such action as [he] determines to be necessary to protect the person involved from bodily
injury and otherwise to assure the health, safety, and welfare of that person," 18 U.S.C. §
352l(b)(l), but he must disclose a Program participant’s identity and location under limited
circumstances:
[T]he Attomey General shall, unon the request of State or local law
enforcement officials . . ., without undue delay, disclose to such
officials the identity, location, criminal records, and fingerprints
relating to the person relocated or protected when the Attomey
General knows or the request indicates that the person is under
investigation for or has been arrested for or charged with an offense
that is punishable by more than one year in prison or that is a crime
of violence.
18 U.S.C. § 352l(b)(l)(G) (emphasis added).
In l98l, plaintiff was sentenced by a state court in Ohio to an aggregate term of 4 ‘/z to 25
years’ imprisonment, and he was admitted to the Columbus Correctional Facility on July 3 l,
l98l. Compl., Attach. (Letter from Chris Gerren, Parole Program Specialist/Fugitive
Coordinator, Ohio Department of Rehabilitation and Correction, to plaintiff dated June 5, 2009)
("Gerren Letter") at l. He was released on August 27, 1984, to begin service of a one-year parole
terrn, was arrested on September 2l, l984, and was charged with bank robbery, a federal offense.
Id., Attach. (Gerren Letter) at l. He was sentenced in the United States District Court for the
Northem District of Ohio on September 5, 1985 , to a 10-year term of imprisonment. Defs.’
Mem., Decl. of Kerry Kemble ("Kemble Decl.") 11 5. Ohio authorities declared plaintiff a
"violator in custody" and lodged a detainer with the BOP. Compl., Attach. (Gerren Letter) at 1.
By filing the detainer, Ohio declared its "intention to pursue [plaintiff s] eventual extradition to
Ohio upon completion of [his] federal terrn." Id., Attach. (Gerren Letter) at 2.
Upon plaintiffs release from BOP custody on May 24, 1991, he was to begin serving his
one-year term of parole. Compl., Attach. (Gerren Letter) at l. He reported to Ohio parole
authorities on June 5, 1991, and on July 20, 1991 , he was arrested and charged with "numerous
felonies." Id., Attach. (Gerren Letter) at 1. Again, on October 10, 1991, Ohio authorities
declared plaintiff a "violator in custody," an event "which tolled or stopped . . . service time on
[his] original sentence from 1981." Id., Attach. (Gerren Letter) at l.
Bank robbery apparently was one of the felonies with which plaintiff was charged in
199l. "[O]n October 8, 1991, [p]laintiff was sentenced in the [United States District Court for
the] Northem District of Ohio to a 132-month sentence with a three-year supervised release term
for Bank Robbery." Defs.’ Mem., Kemble Decl. 11 5.
Plaintiff was "a witness on behafe [sic] of the State of Ohio, in a very high profile death-
penalty murder trial in 1993."1 Compl. at 1. On June 8, 1994, he "was authorized for Program
‘ Plaintiff states that he testified as a govemment witness in 1996 "in U.S. District
Court, Toledo[,] Ohio, in another very high profile case, that involved high ranking members of
the Mexican-Mafia, and other members of organized crime." Pl.’s Aff. and Objection to Federal
Defs.’ Mot. to Dismiss, or in the Altemative, for Summ. J. at 9; see Pl.’s Aff. and Objection to
Federal Defs.’ Mot. to Dismiss, or in the Alternative, for Summ. J. at 9. He further alleges that
the United States Attomey General "received (threat assessments) from the (D.E.A.) and the U.S.
Attomey for the Northem District of Ohio" indicating "the threat, and very real threat this
Plaintiff would face if returned to the (State of Ohio) and some other danger areas." Rep1y to
(continued...)
services while incarcerated . . . and . . . for relocation services . . . on October 6, 1997." Defs.’
Mem., O’Brien Decl. 11 8. ln anticipation of his release, plaintiff filled out a USMS form
supplying "information . . . relevant to his participation in the . . . Program." la'., Decl. of Harvey
Smith ("Smith Decl.") 11 5. According to the USMS, plaintiff stated on the form that he had prior
bank robbery arrests in 1984 and 1991 , and made no mention of any arrest in Ohio. Id., Smith
Decl. 11 5. Plaintiff signed a Memorandum of Understanding ("MOU") with the Attorney
General on June 11, 1997, and in so doing certified that he had no known outstanding court
orders or obligations.z Id. , Smith Decl. 11 6. According to plaintiff, he asked the USMS "to
check and make sure that there were no outstanding warrants . . . or detainer[s] out of Ohio," and
was informed by the USMS, the BOP and the OEO "that as a matter of Policy . . . this is done."
Compl. at 2. He allegedly was told that he had "(NO) warrants[] . . . or detainers pending or
seeking [his] custody, and nothing from the State of Ohio what-so-ever." Ia'.
According to defendants, plaintiff had several opportunities to learn of the existence of
the Ohio detainer. When an inmate "arrives at his first BOP facility, staff . . . request a RAP
sheet from the FBI," and staff review the RAP sheet with the imnate’s presentence investigation
'(...continued)
Defs.’ Reply Mot. Filed on (O1-06-11) to Dismiss, or in the Alternative, for Summ. J. at 3.
According to plaintiff, there is "a current $50,000.00 contract of money to be paid for [his]
murder." Pl.’s Aff. and Objection to Federal Defs.’ Mot. to Dismiss, or in the Altemative, for
Summ. J. at 9.
2 A Prograrn participant enters into an MOU with the Attomey General before
protection is provided. 18 U.S.C. § 3521(d)(1). Among other matters, the MOU must set forth
the participant’s responsibilities, including outstanding legal obligations such as child custody
and visitation, 18 U.S.C. § 3521(d)(1)(G), and "any probation or parole responsibilities." 18
U.S.C. § 3521(d)(1)(H). In addition, the participant must agree "not to commit any crime," 18
U.S.C. § 3521(d)(1)(B), and to "comply with legal obligations and civil judgments against
[him]," 18 U.S.C. § 3521(d)(l)(D).
report to determine whether there are "possible pending charges or sentences in connection with
that inmate." Defs.’ Mem., Kemble Decl. 11 8. "Additionally, it is routine procedure for BOP
staff to provide each inmate a SENTRY Sentence Monitoring Computation Data short shortly
after [he arrives at] a BOP facility." Id., Kemble Decl. 11 9. The BOP’s declarant represents that
plaintiffs 1991 Sentence Monitoring Computation Sheet "would have reflected that [he] had a
detainer." Id. , Kemble Decl. 11 9. "Besides . . ., an inmate can ask his Unit Team staff about
outstanding warrants or any other information contained in his central file at any time." Ia’.,
Kemble Decl. 11 11. In response to an inmate’s inquiry, his "Unit Team will either check the
inmate’s file or SENTRY for the information or will make the file available for the inmate’s
review." Id., Kemble Decl. 11 11. "No statute, regulation or procedure, requires the [USMS] to
search for, file, administer or inform [a Program participant] of state detainers lodged against him
with the [BOP]." Ia'. , Smith Decl. 11 4. Similarly, "[n]o statute, regulation or procedure requires
OEO to inform Program participants of warrants or detainers lodged against them." Ia'., O’Brien
Decl. 11 7.
Plaintiff was released from BOP custody on October 17, 1997, without notice to Ohio
authorities. Compl., Attach. (Letter from Joseph P. Van Kempen, Assistant Administrator,
lnmate Monitoring Section, BOP, to Cynthia Jones, Acting Parole Program Specialist, Ohio
Department of Rehabilitation and Correction, dated April 23, 1998) ("Van Kempen Letter").
The Program placed plaintiff in Providence, Rhode Island. Pl.’s Aff. and Objection to Fed.
Defs.’ Mot. to Dismiss, or in the Altemative, for Summ. J. ("Pl.’s Opp’n") at 7.
The USMS terminated plaintiffs Program participation on March 10, 1998, Defs.’ Mem.,
O’Brien Decl. 11 8, "because he failed to attend substance abuse counseling, . . . admitted to drug
use, and . . . tested positive for cocaine and marijuana use." Id. , Smith Decl. 11 8. Plaintiff
"sign[ed] his notice of termination [in] June of 1998, after he had been arrested for committing
several bank robberies, which would have presented additional grounds for his dismissal from
the [P]rogram." Ia'., Smith Decl. 11 8; see id., Kemble Decl., Ex. 1 (Sentence Monitoring
Computation Data) at 1-5. "On February 11, 2000, [p]laintiff was sentenced in the [United
States District Court for the] District of Rhode lsland for seven counts of Bank Robbery and one
count of Escape F rom an Institution to Which he was Confined," and the court imposed a
sentence of "l 88 months with three years[’] supervised released for each of his bank robbery
counts to run concurrent[ly] with each other and 33 months with three years[’] supervised release
for escape, to run consecutive[ly] to the 188 month terms." Ia'., Kemble Decl. 11 5.
According to plaintiff, in 2005 or 2008, Compl. at 2, he discovered that the State of Ohio
had issued a parole violator warrant in 1991, see z``d., Attach. (State Warrant, Institution No.
SOCF-164005, dated October 31, 1991), which had been lodged as a detainer but misfiled by
BOP staff, see ia'., Attach. (Van Kempen Letter). BOP staff apparently "placed the warrant
paperwork in the wrong section of the inmate Central File." Defs.’ Mem., Kemble Decl. 11 10.
Due to this error, the BOP failed to notify Ohio authorities prior to plaintiffs release from BOP
custody on October 17, 1997.3 See Compl., Attach. (Van Kempen Letter) at 1. Ohio then
declared plaintiff "a violator at large effective April 7, 1998, and a warrant [was] issued for his
arrest." Id. Ohio since has re-issued its warrant, which the BOP has lodged as a detainer. Defs.’
Mem., Kemble Decl. 11 12; see z``d., Ex. 8 (State Warrant, Institution No. Al64005, dated August
3 The BOP was notified on October 16, 1997, that plaintiff s sentence had been
reduced to time served, and, accordingly, released him on October 17, 1997. Compl., Attach.
(Van Kempen Letter).
31, 2005, and Detainer Action Letter).
Plaintiff "[c]urrently . . . is housed at a BOP contract facility . . . in Stillwater,
Minnesota," Defs.’ Mem., Kemble Decl. 11 6, and "is scheduled for release in January 2014."
Hansen v. Collz``ns, No. 2:09-cv-00517, 2010 WL 3702558, at *l (S.D. Ohio Sept. 16, 2010).4
He asserts that "he has done everything possible Administratively to bring this matter to a safe
resolution," yet no one "will take any action to correct this matter." Compl. at 3. He alleges that
the BOP, the USMS, and the OEO have placed his life at risk, apparently by failing to inform
him of the existence of the Ohio detainer which ultimately will effect his return to Ohio. He
brings this action under the Federal Tort Claims Act, see 28 U.S.C. §§ 2671-80, and demands
9¢£
damages of $15,000 as compensation for defendants gross negligence, and deprivation of due
process in violation of plaintiff[’]s [F]ourteenth [A]mendment protections," stemming from the
alleged mishandling of the Ohio detainer. Compl. at 3. ln addition, plaintif "seek[s] Judicial
Review . . . on the decision to terminate, or reinstate this plaintiff to the Witness Protection
Program." Supp. Mem. [Dkt. #7] at l.
11. DISCUSSION
For purposes of this Memorandum Opinion, the Court presumes, without deciding, that
4 Plaintiff filed an action against the Ohio Department of Rehabilitation and
Correction ("ODRC") in the United States District Court for the Southem District of Ohio, and
the court construed his claim as one “that ODRC is acting with deliberate indifference to a
substantial threat to his safety, in violation of the Eighth Amendment," because "he will be in
grave danger if returned to Ohio because of testimony he gave during the 1990s." Hansen, 2010
WL 3702558, at * l. The case was dismissed without prejudice. Id. at *4. Noting that plaintiffs
success on his Eighth Amendment claim requires proof of the ODRC’s awareness of a risk to his
safety and its deliberate disregard thereof, the court determined that a decision "at a time closer
to [P]laintiff s release," roughly one year prior to his release in 2014, was appropriate. Id.
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plaintiff has named the proper defendant,$ that his complaint is timely filed," and that this district
is the proper forum for resolution of his claims.7
A. Plaintiyj‘"’s Negligence Claz``m Under the FTCA
"lt is axiomatic that the United States may not be sued without its consent and that the
existence of consent is a prerequisite for jurisdiction." United States v. Mitchell, 463 U.S. 206,
212(1983). "Absent a waiver, sovereign immunity shields the Federal Govemment and its
agencies from suit." Fed. Deposz't Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994); see Dep ’t of
the Army v. Blue Fox, Inc., 525 U.S. 255, 260 (1999). The FTCA is one example ofan express
waiver of sovereign immunity, allowing the United States to be held liable "in the same manner
and to the same extent as a private individual under like circumstances," 28 U.S.C. § 1346(b)(l),
5 The United States is the only proper defendant to a complaint filed under the
FTCA, yet plaintiff names the Directors of the BOP, the USMS, and the GEO as parties to this
action, see Compl. (Caption). This is a defect easily addressed by amendment of the complaint,
which plaintiff is willing to do, see Pl.’s Opp’n at 2, and the Court declines to dismiss this action
for plaintiff s failure to name the United States.
6 Plaintiff claims to have leamed of the Ohio detainer as early as 2005, see Compl.
at 2; see Pl.’s Opp’n at 3, notwithstanding his inquiries to BOP staff over the years, who "always
said (NO) there is nothing in the system or file here." Pl.’s Opp’n at 6. Defendants’ declarant
asserts that plaintiff did, should have, or could have leamed of the Ohio detainer at several points
during his time in BOP custody, Def.’s Mem., Kemble Decl. 1111 8-9, 11. The date on which
plaintiff leamed of the existence of the Ohio detainer is unclear, and the Court neither will
dismiss nor will grant summary judgment for defendants on timeliness grounds.
7 Even if the events giving rise to plaintiffs FTCA claim occurred in Arizona as
defendants suggest, see Defs.’ Mem. at 6, plaintiffs choice of forum is entitled to some
deference. See Koster v. Am. Lumbermens Mut. Cas. Co., 330 U.S. 518, 531 (1947).
Moreover,"[a]ll decisions, or orders, conceming this plaintiff came out of the Central Office of
the (BOP) and the Central Office of the (USMS), and approved, an[d] coordinated by (OEO) at
Main Justice . . . within the District of Columbia," and, according to plaintiff, documents relevant
to his claims are located in the District of Columbia. Pl.’s Opp’n at 2. The Court will deny
defendants’ motion to dismiss for improper venue¢ `` ``
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for certain, but not all, tort claims. See, e.g., Richards v. United States, 369 U.S. 1, 6 (1962). For
example, "the United States simply has not rendered itself liable under [the FTCA] for
constitutional tort claims."s Meyer, 510 U.S. at 478.
A federal district court addressing an FTCA action must apply the law of the state,
presumably in this case the District of Columbia, in which the alleged tortious conduct occurred."°
See 28 U.S.C. § 1346(b). The Court, then, must "ask whether a cause of action exists under the
District of Columbia law for the injuries [plaintiff] alleges." Art Metal-US.A., Inc. v. United
States, 753 F.2d 1151, 1159 (D.C. Cir. 1985) (citing Carlson v. Green, 446 U.S. 14, 23 (1980)).
8 Plaintiff s demand for monetary damages for alleged constitutional torts
committed by defendants Harley G. Lappin, John Clark and Paul O’Brien in their official
capacities must be denied. The FTCA does not operate as a waiver of sovereign immunity for
constitutional torts. Meyer, 510 U.S. at 478. Furthermore, the "United States and its . . . officers
shall not be subject to any civil liability on account of any decision to provide or not provide
[Program] protection." 18 U.S.C. § 3521(a)(3).
9 Defendants assert that the place where the relevant events occurred was Arizona,
as plaintiff happened to be incarcerated at the Federal Correctional institution in Phoenix
immediately prior to his release in October 1997. Def.’s Mem. at 7-8; see ia’., Kemble Decl., Ex.
1 (lnmate History) at 3. The apparent misfiling of the Ohio detainer would have occurred at FCl
Phoenix. Ia’., Kemble Decl. 11 10. Plaintiff counters that "[a]ll decisions or orders conceming
[him] came out of the Central Office of the (BOP) and the Central Office of the (USMS), and
approved, an[d] coordinated by (OEO) at Main Justice. All located within the District of
Columbia. And as in 1997, . . . all files, documents, and classified threat assessments are located
and held in the District of Columbia." Pl.’s Opp’n at 2. The elements of a negligence claim the
two jurisdictions are substantially similar, however. Compare Youssefv. 3636 Corp., 777 A.2d
787, 792 (D.C. 2001) ("Generally, in order to prevail on a claim of negligence, the plaintiff must
establish a duty of care, a deviation from that duty, and a causal relationship between that
deviation and an injury sustained by the plaintiff."), with Ontz'veros v. Borak, 667 P.2d 200, 204
(Ariz. 1983) (quoting W. Prosser, Handbook on the Law of Torts § 30, at 143 (4th ed. 1971))
("Ordinarily, a plaintiff may maintain an action in negligence if he proves . . . [a] duty, or
obligation . . . requiring the [defendant] to conform to a certain standard of conduct, for the
protection of others against unreasonable risks," defendant’s failure to meet that standard, a
"reasonably close causal connection between the conduct and the resulting injury," and "actual
loss or damage.").
Here plaintiff alleges negligence, and there are three elements to a negligence claim under
District of Columbia law: "the applicable standard of care, a deviation from that standard by the
defendant, and a causal relationship between that deviation and the plaintiff s injury." Toy v.
District of Columbia, 549 A.2d 1, 6 (D.C. 1988) (intemal quotation marks and citations omitted).
Defendants contend that plaintiff fails to "allege that any of the [d]efendants had a duty to
inform him of any outstanding warrants before he was released from prison in 1997," Defs.’
Mem. at 7, a defect which prevents him from maintaining a negligence claim, id. at 8.‘° Next,
defendants argue that plaintiff "is unable to prove causation" because he "fails to allege how
[d]efendants’ actions caused" any risk to his safety. Id. The Court concurs.
Plaintiff claims not to have known of an outstanding obligation in Ohio, and he faults
defendants for failing to advise him of the existence of the Ohio detainer. He asserts that
defendants "had a duty, and standard of care, to make certain, and to insure that the very state the
govemment was seeking to relocate this plaintiff from (Ohio forever), did not . . . have an active .
. . Warrant, and detainer . . . filed with the (BOP)." Pl.’s Opp’n at 7. He opines that, "when the
U.S. Attomey made the determination to relocate & protect this plaintiff, the govemment [at time
of his release in 1997] had a duty of care, to insure what the govemment was setting out to do
would not be undone by the very state that the government was relocating this plaintiff for
10 Although defendants move to "dismiss [p]laintiffs FTCA claims for failure to
state a claim upon which relief can be granted" under Fed. R. Civ. P. 12(b)(6), see Defs.’ Mem.
at 9, because "matters outside the pleadings are presented to and not excluded by the court," Fed.
R. Civ. P. 12(d), the motion is treated as one for summary judgment under Fed. R. Civ. P. 56.
Summary judgment is granted "if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).
"[T]he burden on the moving party may be discharged by ‘showing’ - that is, pointing out to the
district court - that there is an absence of evidence to support the nonmoving party’s case."
Cel0tex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
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protection from." Reply to Defs.’ Reply l\/Ioti.Filed on (01-06-11) to Dismiss, or in the
Alternative, for Summ. J. at 3. 1n other words, because his testimony as a govemment witness
placed him in danger, defendants are obligated to protect him, and to meet their obligation, they
must take action to prevent his retum to Ohio at any time under any circumstances, regardless of
his termination from the Program. He places the burden on defendants to "step-up and resolve a
minor parole rule violation," Pl.’s Opp’n at 9, which he deems "a big mistake on the part of Ohio
parole officials," ia'. at 3. Conspicuously absent from plaintiff s submissions is any citation to
legal authority or material in the record to support these assertions.
Plaintiff cannot overcome defendants’ showing that neither OEO, USMS nor BOP has
any duty to search for or inform plaintiff of a state detainer. Nor does plaintiff show that these
defendants can override the Ohio authorities’ clear intention to secure his retum to Ohio upon his
release from federal custody. lf plaintiff were retumed to Ohio, it would occur upon the
execution of the Ohio warrant which has been lodged with the BOP as a detainer. As defendants
state, "[p]laintiff fails to explain how [they] could resolve" the Ohio detainer matter when the
"federal govemment does not have authority to demand that Ohio rescind its warrant." Reply in
Supp. of Fed. Defs.’ Mot. to Dismiss or, in the Altemative, for Summ. J. at 5. Plaintiff remains
subject to the Ohio warrant and detainer regardless of the BOP’s filing error or whether these
defendants failed to notify him of the detainer’s existence.
Because plaintiff cannot demonstrate defendants’ duty, breach of that duty, or a causal
relationship between the breach and any injury he stands to suffer, the negligence claim fails.
B. Jua'icial Revz``ew of Program Participation
The Attomey General may terminate protection for a Program participant if the
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participant "substantially breaches the [MOU] entered into . . . pursuant to [18 U.S.C. § 352l(d)],
or who provides false information conceming the [MOU] or the circumstances pursuant to which
[he] was provided protection." 18 U.S.C. § 3521(f). "The decision of the Attomey General to
terminate . . . protection shall not be subject to judicial review." Ia'. Plaintiff seeks review of the
Attomey General’s decision to terminate his Program participation on the ground that his retum
to Ohio will place him "in great risk of serious injury, and or death, in the future." Supp. Mem.
at 1 (emphasis in original). To bar a challenge to the Attomey General’s decision, plaintiff
contends, amounts to a "violation of [his] Fourteenth Amendment Protection under the U.S.
Constitution." Id. "The decision not to protect [his] life . . . is going to cost [him] his life at
some point, if not at this prison then another." Aff. and Objection to Defs.’ Mot. to Dismiss, or
Summ. J. on Pl.’s Joined Compl. Under 42 U.S.C. [§] 1983 [Dkt. # 12] at 2.
There is no judicial review of the Attomey General’s decision to terminate participation
in the Program. Both plaintiff s claim for review of his termination and his claim for
reinstatement into the Program must be dismissed for lack of jurisdiction. Boyd v. T ’Kaeh, 26
Fed. App’x 792, 794 (10th Cir. 2001) (rejecting plaintiff s "claim[] that the bar on judicial
review under § 3521(f) is unconstitutional" and affirming district court’s denial of injunctive
relief to reinstate participation in the USMS Witness Protection Program); United States v.
Gz``gahte, 187 F.3d 261, 262 (2d Cir. 1999) (per curiam) (affirming district court’s dismissal of
prisoner’s request for retum to the witness protection program); Butler v. Attorney Gen. of the
U.S., No. 08-1258, 2008 WL 2844023, at *1 (D.D.C. July 23, 2008) ("The Court lacks
jurisdiction over the claim for injunctive relief seeking plaintiff s retum to the witness protection
program."); Newman v. Gonzalez, No. 05-CV-5215, 2007 WL 674698, at *1 (E.D.N.Y. Mar. 5,
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2007) ("[Plaintiff s] demand that this Court compel the [DOJ] to place him in the Federal
Witness Security Program in order to shield him from dangers allegedly caused by his
cooperation with the govemment calls for relief which the Court is without jurisdiction to
provide.").
1Il. CONCLUSION
Plaintiff cannot demonstrate that defendants have breached a duty to inform him of the
existence of the Ohio detainer or that they will cause his retum to Ohio where he is at risk of
serious personal injury or death. He thus fails to make out a negligence claim, and summary
judgment will be granted for defendants on the FTCA claim. Plaintiffs claim pertaining to
Program participation and those against defendants Harley G. Lappin, John Clark and Paul
O’Brien in their official capacities will be dismissed for lack of subject matter jurisdiction.
Accordingly, defendants’ motion to dismiss or for summary judgment will be granted. An Order
accompanies this Memorandum Opinion.
Ctt.s \<,£111_»/
COLLEEN KOLLAR KOTELLY l
United States District judge
DATE: @.%d./, 2011
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