Miller v. United States (530 F. Supp. 611, 1982)

OPINION

LUONGO, District Judge.

Plaintiffs, Bruce A. Johnston, Jr., a government informant, and Linda J. Miller, the administratrix of the estate of Robin M. Miller, filed this action under the Federal Tort Claims Act, 28 U.S.C. § 1346 (FTCA), contending that Johnston’s injuries and Miller’s death resulted from the government’s negligence in failing to provide them with police protection. The government moves to dismiss for lack of subject matter jurisdiction, F.R.Civ.P. 12(b)(1), contending that this action is barred by the discretionary function exception to the FTCA, 28 U.S.C. § 2680(a), and on the ground that plaintiffs have failed adequately to allege the element of legal causation and, therefore, have failed to state a claim upon which relief can be granted, F.R.Civ.P. 12(b)(6).

Accepting as true the well-pleaded facts of the complaint, as I must on this motion to dismiss, they are: Bruce A. Johnston, Jr., because of his relationship with his girl friend, Robin M. Miller, was cooperating with the government in its investigation of Bruce Johnston, Sr.’s criminal organization. During the course of obtaining information from Bruce Johnston, Jr., and to induce his further cooperation, government agents promised “the federal protection program to Bruce Johnston, Jr. for both he (sic) and . . . Robin Miller.” (Amended Complaint ¶ 5). The government knew of the senior Johnston’s organization’s reputation for “assignation and murder” and, therefore, knew of the risk created by Bruce Johnston, Jr.’s cooperation with federal authorities. The risk to Miller stemmed from her relationship with Bruce Johnston, Jr. and the fact that she was “the principal reason for Johnston’s cooperation with the government.” (Amended Complaint ¶ 6). The government did not furnish the promised protection. On or around November 13, 1979, Bruce Johnston, Jr. suffered serious injuries, and Robin Miller died, from gunshot wounds. Plaintiffs contend that the government was negligent for failing to provide protection and that its negligence caused Johnston’s injuries and Miller’s death. Administrative claims were filed as required by the FTCA, 28 U.S.C. § 2675, and this action followed.

(a) Discretionary Function

The threshold question is whether this action is barred by the discretionary function exception to the FTCA, 28 U.S.C. § 2680(a). Because the Thir