DOE et al v. UNITED STATES OF AMERICA et al
Filing
59
MEMORANDUM OPINION AND ORDER signed by JUDGE WILLIAM L. OSTEEN, JR on 3/29/2019; that the Motion to Dismiss Plaintiffs' Amended Complaint filed by Defendant United States of America, (Doc. 40 ), is GRANTED IN PA RT AND DENIED IN PART as set out herein. FURTHER that the Individual Defendants' Motion to Dismiss, (Doc. 42 ), is GRANTED, and Claims VII-X are hereby DISMISSED WITH PREJUDICE. FURTHER that Defendants' Motion for a Stay, (Doc. 48 ), is DENIED as moot. (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
LYNN DOE, as Guardian ad Litem
for "ROBBY" and "TIMMY," minors,
ANN DOE, as Guardian ad Litem
for "ADAM," a minor, ELLEN DOE,
as Guardian ad Litem for
"DANNY," a minor, and CINDY
DOE, as Guardian ad Litem for
"WYATT," a minor,
Plaintiffs,
V.
1:17CV183
UNITED STATES OF AMERICA,
STEPHEN J. SICINSKI, KIM
MCBROOM, ANNETTE SKINNER
COLEMAN, EMILY MARSH,
JOHN/JANE DOE #1,
JOHN/JANE DOE #2, and
JOHN/JANE DOE #3,
Defendants.
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Presently before this court is the Motion to Dismiss
Plaintiffs' Amended Complaint filed by Defendant United States
of America (the "Government"). (Doc. 40.) The Government has
filed a brief in support of its motion. (Doc. 41.) Plaintiffs
Lynn Doe, Ann Doe, Ellen Doe, and Cindy Doe (collectively,
"Plaintiffs") have filed a response in opposition, (Doc. 46),
and the Government has replied, (Doc. 49).
Also before this court is the Motion to Dismiss Plaintiffs'
Amended Complaint filed by Defendants Stephen J. Sicinski, Kim
McBroom, Annette Skinner Coleman, and Emily Marsh (collectively,
"Individual Defendants," and together with the Government,
"Defendants"). (Doc. 42.) The Individual Defendants have filed a
brief in support of their motion. (Doc. 43.) Plaintiffs have
responded in opposition, (Doc. 47), and the Individual
Defendants have replied, (Doc. 50). Defendants' Motion for a
Stay in Light of Lapse of Appropriations is also before this
court. (Doc. 48.) On March 14, 2019, this court heard oral
argument on both motions to dismiss. For the reasons stated
herein, the Government's Motion to Dismiss, (Doc. 40), will be
granted in part and denied in part. The Individual Defendants'
Motion to Dismiss, (Doc. 42), will be granted. And Defendants'
Motion for a Stay, (Doc. 48), will be denied as moot.
I.
BACKGROUND
Plaintiffs allege that Jose Nevarez ("Nevarez"), an
instructor at Department of Defense ("DoD") elementary schools
located on the Fort Bragg military installation in North
Carolina, sexually abused their children. (Amended Complaint
("Am. Compl.") (Doc. 39) IT 1, 2, 31.) Plaintiffs bring this
lawsuit alleging wrongful acts and omissions by the Defendants,
in violation of duties owed to Plaintiffs' children pursuant to
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a federal statute, DoD regulations, and North Carolina common
law. (E.g., id.
A.
10, 13.)1
Parties
Plaintiff Lynn Doe is the mother and Guardian ad Litem for
minors "Robby" and "Timmy." (Id.
I 22.)2
Plaintiff Ann Doe is the
mother and Guardian ad Litem for minor "Adam." (Am. Compl. (Doc.
39) ¶ 23). Plaintiff Ellen Doe is the mother and Guardian ad
Litem for minor "Danny." (Id. ¶ 24.) Plaintiff Cindy Doe is the
mother and Guardian ad Litem for minor "Wyatt." (Id. I( 25.)
Defendant Sicinski is a colonel in the United States Army
and was the Fort Bragg Garrison Commander during the relevant
time. (Id. ¶ 27.) Defendant McBroom was the principal at Fort
Bragg's Pope Elementary School ("Pope Elementary") beginning in
the fall of 2011 and during the relevant time thereafter. (Id.
¶¶ 28, 94). Defendant Coleman was a counselor at Pope Elementary
during the relevant time. (Id. ¶ 29.) Defendant Marsh was the
Fort Bragg District Superintendent during the relevant time.
(Id. ¶ 30.)
Plaintiffs rely on numerous DoD Education Activity
("DoDEA") and United States Army regulations, protocols,
policies, practices, and procedures, which the court will
generally and collectively refer to as the "DoD regulations."
2
Robby was born in 1999 and was a minor when Plaintiffs
filed this lawsuit on March 3, 2017. (Id. ¶ 22; see Doc. 1.)
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B.
Factual Allegations
The facts, viewed in the light most favorable to
Plaintiffs, are as follows.
Plaintiffs do not allege when Nevarez was hired as an
instruction at Fort Bragg's DoD-operated elementary schools.
Whenever Defendants hired Nevarez to be a substitute teacher,
teacher's aide, and paraprofessional educator ("parapro"), they
allegedly did not conduct a thorough background check, in
violation of DoD regulations. (Id. 1111 47-48, 50.) The background
check Defendants did conduct failed to obtain information from
Nevarez's home jurisdiction of Puerto Rico. (Id. $ 50.)
Plaintiffs allege that a more thorough background check would
have revealed prior allegations of sexual abuse from 2006, (id.
11
46, 48), and that Defendant Marsh later "admitted that had
the background check been completed Nevarez would not have been
hired." (Id. 1 50.)3
Because Defendants did not conduct a
thorough background check, Defendants were allegedly required to
subject Nevarez to line-of-sight supervision or video monitoring
in accordance with DoD regulations, which Defendants did not do.
(Id. ¶¶ 49, 51.)
As will be explained hereinafter, the background check,
according to Plaintiffs, was conducted by the FBI. Plaintiffs
neither allege nor explain how the school might have been
negligent in relying upon an FBI background check.
3
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As a result, Plaintiffs allege that Nevarez sexually abused
elementary school students from August 2010 through November
2012 at several Fort Bragg schools, including Pope Elementary.
(See id. ¶ 38.)
1.
Nevarez's Conduct at Pope Elementary
From 2010 until at least November 2011 and March 2012 at
the latest, Nevarez was a substitute teacher and teacher's aide
at Pope Elementary. (See id. ¶¶ 39, 121.) Robby, Timmy, Adam,
Danny, and Wyatt (collectively, "Minor Plaintiffs") attended
Pope Elementary during this time. (Id. ¶ 39.) Minor Plaintiff
Robby is autistic, (id. ¶ 22), and Defendants assigned Nevarez
to be Robby's parapro for the 2010-11 and 2011-12 academic
years. (Id. ¶¶ 39, 44, 192.) During this time, Nevarez allegedly
sexually abused Minor Plaintiffs in school classrooms and
bathrooms during school hours. (See id. ¶¶ 40-41.)
In the spring of 2011, Danny became apprehensive about
attending school and repeatedly stayed home. (See id. 11 57,
59.) Danny and his mother met with a social worker in June 2011.
(See id. ¶ 58.) Danny's mother specifically asked the social
worker if something occurring at school could be causing Danny's
distress, which the social worker allegedly dismissed. (Id.
¶¶ 60-61.) Shortly thereafter, Danny's mother met with the thenPrincipal of Pope Elementary, Joel Grim, to discuss Danny's
newfound apprehension. (Id. ¶ 64.) Plaintiffs allege that
neither the social worker nor Principal Grim fully investigated
Danny's change in behavior. (Id. ¶¶ 62, 65, 68.) Had they,
Plaintiffs contend, they would have identified signs of sexual
abuse. (Id. ¶ 68.)
In September 2011, Nevarez allegedly sexually molested two
unidentified Pope Elementary students. (See id. ¶ 55.)4 On
October 11, 2011, Adam began crying and told his mother that
Nevarez made Adam sit on his lap and "stroked his inner thigh"
during class. (Id.
TT 72, 74.) Adam screamed and told his mother
that he did not want to sit on Nevarez's lap anymore. (Id.
¶ 73.) Adam and his mother immediately met with Defendant
Coleman, the school counselor at Pope Elementary. (Id.
TT 78,
80.) Adam allegedly told Coleman that "Nevarez was touching him
and making him sit on Nevarez's lap and that he did not want to
attend school anymore because he was scared that Nevarez would
be there and touch him again." (Id. ¶ 81.) Coleman allegedly
dismissed Adam's claims, defended Nevarez, and suggested that
Adam had initiated any contact with Nevarez. (Id. ¶¶ 82, 84.)
4
Plaintiffs base these and other allegations on information
gleaned from an investigation report prepared during a criminal
investigation of Nevarez (the "Investigation Report").
Plaintiffs apparently have a redacted version of the
Investigation Report. (See Pls.' Opp'n to United States' Mot. to
Dismiss ("Pls.' Opp'n Br.") (Doc. 46) at 15 n.3.)
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Adam's mom responded that "Adam was not responsible for Nevarez
sexually abusing him." (Id. ¶ 86.) Coleman then asserted that
Defendants took allegations of child abuse seriously, and she
promised to report Adam's disclosure and make sure that it was
investigated. (Id. ¶ 89.)
Plaintiffs allege, upon information and belief, that
Coleman informed Defendant McBroom, Pope Elementary's Principal,
of Adam's disclosure. (Id.
T 94.) Plaintiffs allege that neither
Coleman nor McBroom investigated Adam's claim or reported Adam's
disclosure to their supervisors or the local United States Army
Family Advocacy Program ("FAP") officer as they were required to
under the DoD regulations. (Id. ¶¶ 94, 95, 106, 113, 231.)
Instead, "[s]oon after" Adam's disclosure, Defendant Coleman
allegedly told Nevarez about it. (Id. ¶ 97). Nevarez then
returned to his classroom, told Adam about his conversation with
Coleman, and proceeded to sexually abuse Adam by "strok[ing]
Adam's penis and anus underneath his clothing" while Adam sat on
Nevarez's lap. (Id.
TT 98-102.) Defendant McBroom allegedly
assigned Nevarez to Pope Elementary classrooms on at least
seventeen days in the two months following Adam's disclosure,
including to Adam's and other Minor Plaintiffs' classrooms,
where Nevarez allegedly abused them. (Id. ¶ 110.)
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On November 8, 2011, Wyatt resisted attending school and
told his mother that Nevarez was inappropriately touching him
and other students. (See id. ¶¶ 118-19.) Wyatt's mother informed
her husband, who reported Wyatt's disclosure to the Fort Bragg
Military Police that same day. (Id. ¶ 120.) Wyatt's parents met
with Defendants McBroom and Coleman shortly thereafter. (Id.
¶ 123.) Coleman denied that Nevarez had sexually abused students
or that he would do so. (Id. ¶¶ 124-25.) McBroom informed
Wyatt's parents that Defendants followed protocol after becoming
aware of Nevarez's sexual abuse. (Id. ¶ 126.) McBroom offered no
assistance in providing Wyatt with counseling or treatment. (See
id. ¶ 128.) Plaintiffs allege that neither Coleman nor McBroom
reported Wyatt's disclosure in accordance with DoD regulations.
(Id. If 129.) On or around November 8, 2011, Defendants "removed
Nevarez from the classroom," but did not remove him from the
base. (See id. ¶ 121.)s
5
The Complaint contains contrary allegations that
Defendants assigned Nevarez to the classroom for two months
after learning of Adam's disclosure on October 11, 2011, (Am.
Compl. (Doc. 39) ¶ 110), and that Defendants removed Nevarez
from the classroom on or around November 8, 2011, (see id.
I( 121; see also id. ¶ 179 ("In truth and in fact, the Defendants
waited almost a month after the initial report before dismissing
Nevarez and another four months before barring him from the
base."). At this juncture, the court construes the facts in the
light most favorable to Plaintiffs.
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On January 6, 2012, Plaintiffs allege that Defendants
received another report of child abuse by Nevarez, (Id. $ 143)1
yet, allege no other details about this report except that
Defendants failed to adequately respond to it. (See id.
$$ 143-44.)
In early 2012, Danny told his mother that Nevarez made
Danny sit on his lap while in class and would "rub [Danny's]
back, butt, and thighs, and put his hands inside Danny's pants."
(Id. $$ 147-48.) While doing so, Danny "would feel something
hard poking from Nevarez's pants." (Id. $ 149.) Danny's mother
reported Danny's disclosure to a Criminal Investigation Command
agent, who was apparently working with the FBI to investigate
Nevarez at the time. (See id. $$ 134, 150, 155.) The agent
allegedly told Danny's mother to keep the sexual abuse
allegations quiet, (id. $ 156), and Danny's mother threatened to
go to the media. (Id. $ 157.) Plaintiffs allege that Defendants
retaliated against Danny's family for this threat by
transferring Danny's father to a "low-level" and "menial desk
job far away from Fort Bragg." (Id. $$ 258-60.)
Plaintiffs similarly allege that Defendants later denied
Adam's stepfather's application for compassionate reassignment
without explanation and involuntary separated him from the Army,
which led to the loss of the family's medical insurance and
discontinuation of Adam's treatment and counseling. (Id. $$ 28187.)
6
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On February 21, 2012, Plaintiffs Ann and Ellen Doe met with
Defendant McBroom to seek information on Defendants' supposed
investigation of Nevarez (it is unclear whether Plaintiffs refer
here to the criminal investigation or a separate internal
investigation). (See id. $11 158-59.) McBroom allegedly told them
it was the first she had heard of any sexual abuse allegations
against Nevarez, yet Plaintiffs also allege that McBroom
declined to comment further due to an ongoing investigation.
(See id. $$ 162-63.)
On February 23, 2012, Adam's father informed his commanding
officer of Nevarez's abuse, and he referred Adam's father to a
social worker at Womack Army Medical Center. (Id. $ 165.)
Plaintiffs Ann and Ellen Doe then met with that social worker
and disclosed Nevarez's abuse of their sons. (Id. $ 166.) The
social worker allegedly "blamed the victims" for the abuse and
accused Adam's mother of having a "vendetta against Coleman."
(Id. $$ 167-68.) The social worker nonetheless said that she
would investigate the matter but did not provide any treatment
information, which Plaintiffs allege she was legally obligated
to do. (Id. $ 169-70.)
In early March 2012, Defendants held a meeting for the
parents of those children allegedly abused by Nevarez, which
Adam's and Wyatt's parents attended. (Id. 1 172.) The
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unidentified government representatives at the meeting asserted
that they first learned of Nevarez's abuse from Wyatt's mother
in November 2011. (Id.
f 174.) Adam's mother told the
representatives that she had reported Adam's abuse in October
2011. (Id.) On March 13, 2012, Defendants sent a letter to
parents regarding Nevarez's abuse. (Id. ¶¶ 177-78.) The letter
stated that school officials stopped calling Nevarez to
substitute "Wimmediately upon notification of the initial
allegation." (Id. ¶¶ 177-78.) Plaintiffs allege that Defendants
in fact waited "almost a month [until November 2011] after the
initial report [in October 2011] before dismissing Nevarez and
another four months [until March 2012] before barring him from
the base." (Id. ¶ 179). That delay, Plaintiffs continue,
"enabled Nevarez to continue to abuse children . . . on the
base," (id. ¶ 180), and "undermined the investigation and the
requirement to provide prompt and comprehensive assessment and
treatment." (Id. ¶ 181.)
Prior to a March 16, 2012 town hall meeting at Pope
Elementary, Defendants allegedly "notified Robby's parents of
Nevarez's sexual crimes against their son." (Id. ¶ 197.)
Plaintiffs allege that Defendants assigned Nevarez to work with
Robby after they were notified of Nevarez's abuse. (Id.)
Plaintiffs allege that Nevarez took advantage of his position as
Robby's parapro to "continuously and repeatedly stroke and rub
Robby's penis, back, thighs, legs, and other parts of his body."
(Id. $ 194.) Plaintiffs do not specifically allege when Nevarez
abused Robby.
Defendants Sicinski and Marsh attended the March 16, 2012
town hall meeting at Pope Elementary. (Id. $ 184.) Sicinski
"admitted that a November 8, 2011 report on Nevarez's sexual
abuse of children sat on his desk for three months without being
read." (Id. $ 186.) Parents were told that they should contact
Womack Army Medical Center's Office of Social Work if they were
concerned that their child might have been sexually abused. (Id.
$ 188.)
In or after mid-March 2012, one of Danny's classmates
informed his mother that he "had witnessed the sexual abuse of
Danny and other students." (See id. ¶ 203.) Plaintiffs allege
that "[s]everal children interviewed during [an] investigation
stated that they observed Nevarez either following or pulling
boys into the school bathroom." (Id. $ 206.) Plaintiffs allege
that Defendants McBroom and Coleman knew that other teachers
allowed Nevarez's conduct. (Id. $ 207.)
On March 23, 2012, Defendants notified parents at all Fort
Bragg schools where Nevarez had previously taught that there was
an ongoing investigation into allegations of sexual abuse by "an
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unnamed substitute teacher." (Id. ¶ 208.) Defendant Sicinski
signed the letter, which contained commitments regarding
treatment, care, and counseling for victims. (Id. ¶ 209.)
On March 28, 2012, Defendants conducted an After Action
Review ("AAR") of their handling of the allegations against
Nevarez, the findings of which were documented in a May 3, 2012
memorandum (the "AAR Memo") prepared by Defendant Sicinski. (Id.
11 211-12.) The AAR Memo detailed Defendants' numerous
shortcomings, many in violation of DoD regulations. (See, e.g.,
id. lilt 215-16, 218, 222.) The AAR Memo identified a "reporting
breakdown" on November 8, 2011 as "the primary cause of the
installations' [sic] failure." (Id. ¶ 219 (quoting the AAR Memo
at 2).)
On May 18, 2012, Defendants held a meeting for the sixteen
families affected by Nevarez's actions. (See Am. Compl. (Doc.
39) ¶¶ 224, 229.) At that meeting, Defendant Sicinski, who left
his post at Fort Bragg shortly thereafter, (id. ¶¶ 234-35),
"acknowledged the widespread sexual abuse of children and
regretted that the abuse occurred." (Id. ¶ 229.) The Defendants
also allegedly acknowledged several of their shortcomings in
preventing the sexual abuse, including insufficient monitoring
of teachers and insufficient training on sexual abuse reporting
and identification. (See id. ¶ 230.) During that meeting, a
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Government representative "addressed Counselor Coleman's failure
to respond to the October 2011 report of Adam's sexual abuse."
(Id. t 231.) He allegedly said that DoD school policy "requires
school personnel not to make a judgment about the level of abuse
or whether there is abuse, but that they must report up the
chain of command any indication or hint of child sexual abuse."
(Id.)
In mid-2013, Timmy allegedly disclosed that Nevarez had
abused him by stroking Timmy's body while he sat on Nevarez's
lap. (See id. lit 265, 267.) A therapist evaluated Timmy and
concluded he had been sexually abused by Nevarez. (Id. t 272.)
Timmy's mother contacted a social worker who advised her that
"the Nevarez investigation was 'closed' and that Timmy should
get counseling if there were any issues." (Id. 111 273-74, 27879.) Plaintiffs do not specifically allege when Nevarez abused
Timmy.
Plaintiffs assert that Defendants did not provide or
authorize treatment for Minor Plaintiffs, including Robby, until
months after Wyatt's disclosure in November 2011 and delayed in
providing medical records and never provided other promised
records. (Am. Compl. (Doc. 39) 11 239, 241-43, 248-51.)
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2.
The Investigation Report & Nevarez's Conduct at
Other Schools
In late 2011, Defendants initiated a criminal
investigation, which Plaintiffs assert did not result in charges
against Nevarez. (Id. ¶¶ 131, 133.) Plaintiffs claim that the
investigation "was intended more to shield the Defendants from
civil liability than to prosecute [Nevarez]." (Id.
I 131.) The
Plaintiffs met and communicated with the agent in charge of the
criminal investigation in November 2011 and December 2011 and
were allegedly told to keep quiet about the investigation and
Nevarez's abuse. (See Id. ¶¶ 134-39.) As part of the
investigation, Wyatt and Adam were interviewed at the Child
Advocacy Center in late 2011. (Id.
I 140.) Yet, a social worker
allegedly did not review Wyatt's interview and did not contact
Wyatt's mother until March 2012. (See id.
T 171.) Plaintiffs
allege the criminal investigation took over two years, that
Defendants did not seek to indict Nevarez, refused to offer
Plaintiffs an explanation for not doing so, and that the "United
States Attorney's Office intentionally failed to conduct a
thorough, professional investigation . .
" (Id. ¶¶ 290-92.)
Plaintiffs further allege that Defendants failed to confer with
victims' parents about an ongoing criminal investigation in
violation of 18 U.S.C. § 3771. (Id. ¶ 293.)
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Plaintiffs allege several facts gathered from the
Investigation Report concerning Nevarez's conduct at other
schools. In 2006, Nevarez was accused of similar sexual abuse
while working at Hoke County High School in North Carolina. (See
Id. ¶ 46.) In January or February 2011, Nevarez "hugged
students, targeted kids with disabilities, [and] stared at
girl's [sic] behinds" at Fort Bragg's Irwin Elementary School.
(Id.
T 52.) Based on these facts, Plaintiffs allege that
Defendants "knew about Nevarez's sexual abuse . . . as early as
January or February 2011, when an Irwin school student reported
[Nevarez's] inappropriate behavior to the school teacher and
principal." (Id. ¶ 221.) A Fort Bragg student also reported at
an unalleged time that Nevarez pulled kids into bathrooms,
touched their butts and penises, and set students on his lap.
(Id. ¶ 54.) Plaintiffs allege that the student told his teacher
and principal about this conduct, but that they, along with
other school employees, failed to report these incidents to
officials at the time they occurred, in violation of federal and
state law and DOD regulations. (Id. ¶¶ 52-54.)
3.
Defendants' Alleged Duties
Plaintiffs allege that Defendants voluntarily assumed
several duties and were subject to others imposed by the DOD
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regulations and a federal statute, 42 U.S.C. § 13031.7
(Am.
Compl. (Doc. 39) ¶ 37.) Specifically, Plaintiffs allege that
Defendants had a duty to prevent and protect students from
sexual abuse, (id. ¶ 37.A); a duty to report child sexual abuse,
(id. ¶ 37.B); a duty to identify, investigate, and treat victims
of child sexual abuse, (id.
I 37.C);
and a duty to conduct
background checks and train employees about child sexual abuse,
1 37.D).
(id.
Plaintiffs allege that, if Defendants had conducted a
thorough background check or subjected Nevarez to line-of-sight
supervision, the sexual abuse would not have occurred. (Id.
¶ 51.) Plaintiffs also allege that school officials failed to
adequately train school personnel in violation of DoD
regulations, (id. ¶ 232), and that the Government "failed to
provide education programs to children of Fort Bragg schools,
including [Minor Plaintiffs], on understanding and acting to
prevent themselves from sexual abuse." (Id. ¶ 234.) Plaintiffs
also allege that Defendants breached their duty, as promised to
Plaintiffs in the March 23, 2012 letter, to provide treatment,
care and counseling to victims. (Id. ¶¶ 209, 238.) Plaintiffs
generally allege that Defendants' breaches of these duties owed
42 U.S.C. § 13031 has since been transferred to 34 U.S.C.
§ 20341, which the court will cite.
7
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to Minor Plaintiffs proximately caused Minor Plaintiffs'
injuries, including symptoms of severe sexual abuse. (Id.
¶1 14,
43.)
C.
Claims for Relief
Plaintiffs allege ten claims for relief, six against the
Government and four against the Individual Defendants.
Plaintiffs allege that the Government is generally liable to
them under the Federal Tort Claims Act ("FTCA") and North
Carolina law. (Id. at 53.) In Claim I, Plaintiffs allege that
the Government breached its alleged duty to protect from,
investigate, and remediate Nevarez's sexual abuse given a
reasonably foreseeable risk. (Id.
IT 298-04.) In Claims II-IV,
Plaintiffs allege common law negligence against the Government
for failure to protect, report, investigate, and provide
treatment under three theories: a voluntarily assumed duty
(Claim II), a special duty (Claim III), and a duty arising out
of a special relationship (Claim IV). (Id. ¶¶ 305-32.) In Claim
V, Plaintiffs allege negligence per se and, in Claim VI,
Plaintiffs bring a premises liability claim. (Id. ¶¶ 333-49.)
Plaintiffs allege that the Individual Defendants are liable
to them for violating their Fifth Amendment substantive due
process right to bodily integrity. (See ¶¶ 358, 371, 379, 387.)
Claims VII-X are Bivens claims, under theories of danger
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creation, (id. ¶¶ 357-69 (Claim VII)); failure to screen or
supervise, (id. ¶11 370-77 (Claim VIII)); failure to terminate,
(id. ¶1 378-85 (Claim IX)); and failure to train, (id. 11 386-92
(Claim X)).
II.
THE GOVERNMENT'S MOTION TO DISMISS
The Government has moved to dismiss Claims I-VI pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Doc.
40.) The Government contends that this court lacks subject
matter jurisdiction over Claims I-VI because the FTCA's
intentional torts exception bars those claims. See 28 U.S.C.
§ 2680(h); (United States' Br. in Supp. of Mot. to Dismiss
("Gov't Br.") (Doc. 41) at 1)8. Alternatively, the Government
contends that, even if this court has jurisdiction, Plaintiffs
fail to state a claim upon which relief can be granted because
the Government only owed Minor Plaintiffs a duty of ordinary
care to protect them from foreseeable harm, and Nevarez's abuse
was not reasonably foreseeable. (Id. at 24.)
A.
12(b)(1) Legal Standard
Under Federal Rule of Civil Procedure 12(b)(1), a plaintiff
must prove by a preponderance of the evidence the existence of
8Aal citations in this Memorandum Opinion and Order to
documents filed with the court refer to the page numbers located
at the bottom right-hand corner of the documents as they appear
on CM/ECF.
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subject matter jurisdiction. See Demetres v. E. W. Constr.,
Inc., 776 F.3d 271, 272 (4th Cir. 2015). A defendant may
challenge subject matter jurisdiction factually or facially. See
Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009). Here,
the Government facially challenges subject matter jurisdiction.
(See Gov't Br. (Doc. 41) at 8.) In a facial challenge, a
defendant asserts that the allegations, taken as true, are
insufficient to establish subject matter jurisdiction. See
Kerns, 585 F.3d at 192. The court then effectively affords a
plaintiff "'the same procedural protection as he would receive
under a Rule 12(b)(6) consideration," taking the facts as true
and denying the Rule 12(b)(1) motion if the complaint "alleges
sufficient facts to invoke subject matter jurisdiction." Id.
(quoting Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)).
B.
12(b)(6) Legal Standard
To survive a Rule 12(b)(6) motion, "a complaint must
contain sufficient factual matter, accepted as true, to 'state a
claim to relief that is plausible on its face." Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its
face if "the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable" and demonstrates "more than a sheer possibility that a
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defendant has acted unlawfully." Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 556-57). When ruling on a motion to
dismiss, this court accepts the complaint's factual allegations
as true. Iqbal, 556 U.S. at 678. Further, this court liberally
construes "the complaint, including all reasonable inferences
therefrom,
. in plaintiff's favor." Estate of Williams-Moore
v. All. One Receivables Mgmt., Inc., 335 F. Supp. 2d 636, 646
(M.D.N.C. 2004) (citation omitted). This court does not,
however, accept legal conclusions as true, and "(t]hreadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice." Iqbal, 556 U.S. at 678.
C.
The FTCA
As a sovereign, the United States and its agencies are
immune from suit, absent a waiver of that immunity. F.D.I.C. v.
Meyer, 510 U.S. 471, 475 (1994). A plaintiff bears the burden of
demonstrating a waiver of that immunity and also that an
exception to the waiver does not apply; if a plaintiff fails to
meet that burden, then the court lacks subject matter
jurisdiction and must dismiss the suit. See Welch v. United
States, 409 F.3d 646, 651 (4th Cir. 2005).
Plaintiffs allege that this court has jurisdiction under
the FTCA, which creates a limited waiver of the Government's
sovereign immunity. In that regard, the FTCA is strictly
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construed, and all ambiguities are resolved in favor of the
United States. Robb v. United States, 80 F.3d 884, 887 (4th Cir.
1996). The FTCA provides that:
[T]he district courts . . . shall have exclusive
jurisdiction of civil actions on claims against the
United States, for money damages . . . 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)(1). The FTCA's waiver of immunity only
applies in negligence actions against the Government where the
Government, "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).9
Here, that law of
the place is North Carolina.
Even if a claim meets § 1346(b)(1)'s requirements, the
claim might be barred by an exception to the FTCA's waiver of
9
The relevant "private person" inquiry is whether a
similarly-situated defendant would be liable under North
Carolina law. Here, the court analyzes whether Plaintiffs
plausibly establish liability under North Carolina law were Pope
Elementary owned by a private person and not located on a
federal military base. See Sheridan v. United States, 487 U.S.
392, 401 (1988) ("Sheridan I") ("The District Court and the
Court of Appeals both assumed that petitioners' version of the
facts would support recovery under Maryland law on a negligence
theory if the naval hospital had been owned and operated by a
private person.").
- 22 -
immunity. One of those exceptions, the intentional tort
exception, provides that the FTCA's waiver of sovereign immunity
does not apply to any claim arising out of assault or battery.
28 U.S.C. § 2680(h). Here, that means that, if Plaintiffs'
claims against the Government arise out of Nevarez's sexual
assault or battery of Minor Plaintiffs, then those claims are
barred by the intentional tort exception.
To establish that their claims against the Government did
not arise out of Nevarez's intentional torts, Plaintiffs must
plausibly allege that the Government negligently breached a duty
imposed upon it that was "entirely independent" of Nevarez's
employment status and that the breach "allowed a foreseeable
assault and battery to occur." Sheridan I, 487 U.S. at 401.
Allegations of negligent supervision, however, will not
establish FTCA liability "because the United States owes no
general duty to the public to supervise its employees or agents
with care." Sheridan v. United States, 969 F.2d 72, 75 (4th Cir.
1992) ("Sheridan II") (citation and internal quotation marks
omitted); see also Sheridan I, 487 U.S. at 406 (Kennedy, J.
concurring) ("To determine whether a claim arises from an
intentional assault or battery and is therefore barred by the
exception, a court must ascertain whether the alleged negligence
was the breach of a duty to select or supervise the employee-
- 23 -
tortfeasor or the breach of some separate duty from the
employment relation.").
D.
12(b)(1) Analysis
The Government argues first that the FTCA's intentional
torts exception bars Plaintiffs' claims against it, because the
claims reduce to negligent supervision claims precluded by
Sheridan II. (See Gov't Br. (Doc. 41) at 11-13.) Second, the
Government argues that that the Government owes no duty to
Plaintiffs under North Carolina law that is entirely independent
of Nevarez's employment. (See id. at 14-16.)
Plaintiffs argue that Government employees breached duties
entirely independent of Nevarez's employment status through
their own negligent acts and omissions, including those imposed
by North Carolina law. (See Pls.' Opp'n Br. (Doc. 46) at 7-8.)
Plaintiffs contend that the Complaint's negligent hiring,
supervision, and retention allegations are limited to the Bivens
claims against Individual Defendants. (See id. at 10.)
Plaintiffs also argue that "the mere existence of negligent
hiring, supervision, and retention" allegations does not
preclude FTCA claims grounded in independent duties. (Id.)
Both parties have meritorious 12(b)(1) arguments. The
Complaint is littered with negligent hiring, supervision, or
retention allegations supporting Plaintiffs' claims against the
- 24 -
Government, even if not styled as such, and those claims are
barred by the intentional tort exception under Sheridan II. See
969 F.2d at 75. For example, Plaintiffs allege that the
Government breached a duty to train personnel on how to prevent,
identify, and treat child sexual abuse. (Am. Compl. (Doc. 39)
¶¶ 307, 315, 327, 335.) Contrary to Plaintiffs' assertion that
the negligent hiring and supervision claims are limited to the
Bivens claims, these allegations are explicitly contained in
Plaintiffs' third, fourth, and fifth claims for relief against
the Government. Further, the court agrees with the Government
that Plaintiffs attempt to premise claims on the Government's
failure to abide by the DoD regulations, "is simply to assert
that [DoDEA] employees were not properly supervised." Sheridan
II, 969 F.2d at 75; (see Gov't Br. (Doc. 41) at 15). In
addition, these DoD regulations, by their very nature, do not
apply to non-military families and personnel or a private person
in North Carolina, let alone a school. See, e.g., LaFrancis v.
United States, 66 F. Supp. 2d 335, 341 (D. Conn. 1999) ("[T]he
services of the FAP were only available to Navy personnel and
their immediate families; if the plaintiff had been married to a
civilian, she would not have been eligible to participate in the
- 25 -
FAP.")10
While the FTCA caselaw dictates that courts should look
to similar or analogous state law duties as those imposed by
federal regulations, see, e.g., Florida Auto Auction of Orlando,
Inc. v. United States, 74 F.3d 498, 502 (4th Cir. 1996),
Plaintiffs have only attempted to analogize these DoD
regulations to an assumption of the duty claim under North
Carolina law. (See Pls.' Opp'n Br. (Doc. 46) at 20.) But that
theory of liability, i.e., relying on the gratuitous
promulgation of Army regulations, was foreclosed by the Fourth
Circuit's decision in Sheridan II. See 969 F.2d at 75 ("To
" To take but two examples, Plaintiffs argue that the duty
to investigate sexual abuse imposed by the DoD regulations does
not depend on the abuser's employment with the DoD. (See Pls.'
Opp'n Br. (Doc. 46) at 14 (citing Rev. Reg. 608-18 ch. 1, § I,
1-6).) Even if the court agrees, Plaintiffs do not plausibly
allege that a private person under North Carolina law has a duty
to investigate and assess child abuse. In fact, the reporting
regimes suggest to this court that private persons would not
have such a duty. So too of the FAP's alleged requirements that
Defendants treat child abuse. (See Am. Compl. (Doc. 39) 1 37.C.)
Even if the court found that the DoD regulations created legally
enforceable obligations owed by the Government, the court is
unaware of any analogous duty to treat child abuse imposed upon
a North Carolina school or its employees.
Further, many of the DoD regulations Plaintiffs rely upon
merely recite policy statements. (See, e.g., id. ¶¶ 37.0-D.)
This court doubts that analogous state policy statements could
form the basis of any duty under North Carolina law. See McCants
v. Nat'l Collegiate Athletic Assin, 201 F. Supp. 3d 732, 743
(M.D.N.C. 2016) ("It is well settled under North Carolina law
that the adoption of rules, policies, and procedures . . . is
insufficient as a matter of law to impose a legal duty based on
the voluntary undertaking doctrine.").
- 26 -
premise a claim on failure to follow these regulations, with
nothing more, is simply to assert that naval employees were not
properly supervised.").11 To the extent that Plaintiffs' claims
against the Government allege negligent hiring, supervision,
retention, or training, those claims will be dismissed. To the
extent Plaintiffs' remaining claims are premised on duties
created by the DoD regulations, the court finds them to be
barred by the intentional tort exception and the FTCA's privateperson principle, and they will be dismissed.12
Plaintiffs are correct, however, that the mere presence of
negligent supervision allegations precluded by the intentional
tort exception does not foreclose all of their claims. For
example, even after Sheridan I and Sheridan II a general state
law assumption of the duty negligence theory can support an FTCA
claim. Sheridan II, 969 F.2d at 74 (noting that plaintiffs
dropped their claim predicated on the conduct of the three
Nevertheless, the court will consider briefly the DOD
regulations in its analysis of Plaintiffs' assumption of a duty
claim.
11
12
This court notes that Plaintiffs specifically argue that
any allegations regarding the failure to complete a thorough
background check are limited to the Individual Defendants.
(Pls.' Opp'n Br. (Doc. 46) at 14 n.2.) Because the Bivens claims
against Individual Defendants will all be dismissed under Ziglar
v. Abbasi, 582 U.S.
, 137 S. Ct. 1843 (2017), see infra at
72-94, the court need not address the alleged failure to obtain
a thorough background check in detail.
- 27 -
corpsmen, i.e., abandoning a drunk corpsman possessing a rifle
without notifying authorities, which the Supreme Court had
suggested could form a state law duty independent of the
tortfeasor's employment). Stated another way, notwithstanding
the DoD regulations, the issue remains "whether a private person
could be held liable in North Carolina if he or she were to
commit the acts alleged in the Complaint .
. by the
Government." Lumsden v. United States, 555 F. Supp. 2d 580, 587
(E.D.N.C. 2008).
In Sheridan I, the Supreme Court specifically stated that
"[t]he negligence of other Government employees who allowed a
foreseeable assault and battery to occur may furnish a basis for
Government liability that is entirely independent of [the
tortfeasor's] employment status." Sheridan I, 487 U.S. at 401.
At its core, the Complaint alleges that the Government failed to
protect Minor Plaintiffs from foreseeable abuse and to report
abuse when it occurred, in violation of North Carolina law and a
federal reporting statute. The Complaint alleges negligence
against the Government through acts and omissions of the
Individual Defendants themselves, not Nevarez, and many of the
allegations "cannot reasonably be read to allege that the
plaintiffs are seeking relief from the Government arising from
an intentional assault and battery inflicted by [Nevarez]." See
- 28 -
Lumsden, 555. F. Supp. 2d at 584. Instead, as Plaintiffs argue,
Nevarez's "employment by the Government is irrelevant to [much
of] the plaintiff's theory of liability." Id. (citing Sheridan
I, 487 U.S. at 402); (see also Pls.' Opp'n Br. (Doc. 46) at 14
(arguing that the Government's duties would apply here whether
Nevarez was a teacher, volunteer, or "off-the-street vagrant").)
But that is only half of the inquiry. Plaintiffs must also
plausibly allege facts to satisfy the FTCA's private-person
principle - i.e., that the Government could be liable to Minor
Plaintiffs as a private person under North Carolina law. That
private-person inquiry requires the court to determine whether
Plaintiffs plausibly state a negligence claim under North
Carolina law. Under North Carolina law, a defendant cannot be
held liable for negligence without owing a duty to plaintiff,
breaching that duty, and proximately causing an injury. Stein v.
Asheville City Bd. of Educ., 360 N.C. 321, 328, 626 S.E.2d 263,
267 (2006)).
This court therefore turns to whether the Complaint
plausibly establishes a duty owed by the Government to Minor
Plaintiffs under any of Plaintiffs' six theories of negligence
under North Carolina law. See Durden v. United States, 736 F.3d
296, 302 (4th Cir. 2013); see also Rivanna Trawlers Unlimited v.
Thompson Trawlers, Inc., 840 F.2d 236, 239 (4th Cir. 1988)
- 29 -
(citing Bell v. Hood, 327 U.S. 678, 682 (1946) ("[W]hen the
contested basis for jurisdiction is also an element of the
plaintiff's federal claim, the claim should not be dismissed for
lack of subject matter jurisdiction.").) Plaintiffs' theories
essentially fall into two categories: those premised on a duty
of ordinary care to prevent foreseeable harm - which all persons
in North Carolina owe to each other, and those premised on a
heightened duty of care.
E.
12(b)(6) Analysis
In analyzing each alleged duty in the FTCA context, this
court's job is to predict how the Supreme Court of North
Carolina would rule on any disputed state law questions if no
controlling precedent exists. See Menard v. United States, No.
4:15-CV-160-D, 2016 WL 4258978, at *3 (E.D.N.C. Aug. 10, 2016)
(citing Twin City Fire Ins. Co. v. Ben Arnold-Sunbelt Beverage
Co., 433 F.3d 365, 369 (4th Cir. 2005)). In predicting how the
North Carolina Supreme court might decide an issue, this court
also "consider[s] lower court opinions, treatises, and the
practices of other states.'" Menard, 2016 WL 42589878, at *3
(quoting Twin City Fire Ins., 433 F.3d at 369). This court
"follow[s] the decision of an intermediate state appellate
court unless there is persuasive data that the highest court
would decide differently.'" Menard, 2016 WL 42589878, at *8
- 30 -
(quoting Town of Nags Head v. Toloczko, 728 F.3d 391, 397-98
(4th Cir. 2013)).
1.
Claim I: Breach of Duty to Protect,
Investigate, and Remediate Given a Reasonably
Foreseeable Risk; Claim VI: Premises Liability
In their first claim for relief, Plaintiffs allege breach
of a duty to protect, investigate, and remediate given a
reasonably foreseeable risk. (Am. Compl. (Doc. 39) ¶¶ 298-04.)
Plaintiffs allege that the Government knew or had reason to know
that Nevarez was sexually abusing Minor Plaintiffs, and would
continue to do so, because:
(i) Nevarez had a criminal background; (ii) Danny
refused to attend school; (iii) Danny's mother
reported Danny's change in behavior concerning school;
(iv) in October 2011, Adam and his mother reported
that Nevarez sexually abused Adam; and (v) in November
2011, Wyatt and his mother reported that Nevarez
sexually abused Wyatt.
(Id. ¶ 299.) The parties agree that the Government owed Minor
Plaintiffs a duty to exercise ordinary care to protect them only
from foreseeable harm, which North Carolina law imposes upon all
persons. See Fussell v. N.C. Farm Bureau Mut. Ins. Co., 364 N.C.
222, 226, 695 S.E.2d 437, 440 (2010); see also James v.
Charlotte-Mecklenburg Bd. of Educ., 60 N.C. App. 642, 648, 300
S.E.2d 21, 24 (1983) ("[F]oreseeability of harm .
test of the extent of the teacher's duty .
- 31 -
. is the
In Plaintiffs' sixth claim for relief, a premises liability
claim, they allege that the Government, as "occupant or
possessor" of Pope Elementary: (i) owed "all occupants a
reasonable duty of care, including the duty to protect
elementary school-aged students from reasonably foreseeable
harms;" (ii) had a "special relationship with the Plaintiffs
because of their status as elementary school students," and
(iii) "breach[ed] its duty to care for the premises." (Am.
Compl. (Doc. 39) ¶¶ 344, 346, 349.) To the extent that
Plaintiffs allege that their sixth claim for relief is based on
a special relationship, it will be dismissed for the reasons
discussed herein, see infra at 54-58. To the extent that
Plaintiffs generally assert a premises liability claim based on
the Government's duty to those who enter the premises, the
viability of that claim turns on the foreseeability of Nevarez's
abuse. See Durden, 736 F.3d at 302 (quoting Davenport v. D.M.
Rental Props., Inc., 217 N.C. App. 133, 135, 718 S.E.2d 188,
189-90) (2011) ("In North Carolina, la landlord has a duty to
exercise reasonable care to protect his tenants from third-party
criminal acts that occur on the premises if such acts are
foreseeable.'").) The duty of reasonable care varies depending
on the circumstances, including the type of business and
activities involved. See Martishius v. Carolco Studios, Inc.,
- 32 -
355 N.C. 465, 473-74, 562 S.E.2d 887, 892-93 (2002) (citations
omitted). Foreseeability is therefore the key issue as to
Plaintiffs' first and sixth claims.
A plaintiff can establish foreseeability by plausibly
alleging that "the defendant might have foreseen that some
injury would result from his or her act or omission, or that
consequences of a generally injurious nature might have been
expected." Hart v. Curry, 238 N.C. 448, 449, 78 S.E.2d 170, 170
(1953) (citations omitted). As the Fourth circuit explained in
Durden, foreseeability under North Carolina law can be
established by knowledge of a specific threat against an
individual or through evidence of the tortfeasor's prior
criminal activity. Durden, 736 F.3d at 302 (citing Connelly v.
Family Inns of Am., Inc., 141 N.C. App. 583, 588, 540 S.E.2d 38,
41 (2000); Davenport, 217 N.C. App. at 138, 718 S.E.2d at 191).
The location, type, and amount of prior criminal activity are
especially probative factors. Durden, 736 F.3d at 302 (citing
Connelly, 141 N.C. App. at 588, 540 S.E.2d at 41).
This court finds that Nevarez's alleged criminal
background, Danny's refusal to attend school in the spring of
2011, and Danny's mother's meetings with a social worker and
then-Principal Grim in June 2011 do not plausibly establish that
Nevarez's subsequent abuse was foreseeable.
- 33 -
Plaintiffs allege that Nevarez was accused of sexually
abusing children prior to his employment at Pope Elementary and
that his background "contained indicators of possible
inappropriate student-teacher interactions." (Am. Compl. (Doc.
39) ¶ 352.) Plaintiffs further allege that the Individual
Defendants failed to conduct a "proper and complete" background
check by not obtaining clearance from Puerto Rico and that
Defendant Marsh admitted that Defendants would not have hired
Nevarez if they had obtained a background check from Puerto
Rico. (Id. ¶ 353-55.)" But the Government hired Nevarez after an
FBI background investigation. (Id. ¶ 354.) And Plaintiffs do not
allege that the Government had knowledge of an incident of child
abuse in Puerto Rico. Defendant Marsh's alleged admission, in
May 2012, that Nevarez's conduct in Puerto Rico would have
dissuaded Defendants from hiring Nevarez, without more, is of no
weight in determining what Defendants knew before Nevarez's
abuse of Minor Plaintiffs and of little probative value to this
court in trying to determine whether prior criminal activity was
akin to that alleged here in location, type, and amount.
Plaintiffs also allege that a thorough background check "likely
13
The court notes that these allegations, to the extent
they are alleged against the Government, would likely be
dismissed under the intentional tort exception. The court
considers them nevertheless.
- 34 -
would have revealed" a 2006 allegation against Nevarez from Hoke
County High School in North Carolina. (Id. 11 46-48.) But that
conclusory allegation is unsupported by the Complaint itself, as
the FBI conducted a background check, and Defendants received a
"domestic" background check, just not clearance from Puerto
Rico. (Id.
TT 50, 354.)
The Investigation Report also describes inappropriate
conduct by Nevarez at Fort Bragg's Irwin Elementary in January
or February 2011. The allegations that Nevarez hugged students,
targeted kids with disabilities, stared at girls' behinds, and
spoke face-to-face with students, (id.
T 52), simply do not
plausibly suggest knowledge of a specific threat or contribute
to a consideration of prior criminal activity or future child
abuse. The allegations, without more, are not reflective of
criminal behavior. Plaintiffs rely on these allegations from the
Investigation Report to allege that Defendants "knew about
Nevarez's sexual abuse .
. as early as January or February
2011." (Id. 11 221). This court does not find such an inference
plausible. The Investigation Report also allegedly contains a
statement from an unidentified Fort Bragg student that Nevarez
pulled kids into bathrooms, "touch[ed] their wieners, and s[et]
them on his lap." (Id. t 54.) Plaintiffs allege that the student
reported Nevarez's abuse to two unidentified people at an
- 35 -
unalleged time. Plaintiffs then allege, upon information and
belief, that the two unidentified persons were the unidentified
student's teacher and principal, who both failed to report the
matter. This student's disclosure to the two individuals could
have occurred as a result of the investigation itself, making it
of minimal value to a foreseeability inquiry. The court simply
cannot infer one way or the other. Plaintiffs also rely on the
Investigation Report to allege that Nevarez sexually molested
two other Pope Elementary students in September 2011. Plaintiffs
do not allege when these incidents were reported, and they too
could have been reported for the first time during the criminal
investigation. While these allegations are troubling, the court
hesitates to rely on them to impute knowledge to Defendants of
Nevarez's potentially criminal activity at the relevant time.
What the Government knew after the Investigation Report in late
2011 or early 2012 is not as relevant as what it knew in 2010
through mid-2011. Understanding that Plaintiffs have limited
access to relevant sources of information at this stage,
including only a redacted copy of the Investigation Report, the
court nevertheless declines to find that Nevarez's abuse was
foreseeable based on non-criminal activity or conclusory
allegations of prior criminal activity without more. See, e.g.,
Nemet Chevrolet, Ltd. v. Consumeraffaris.com, Inc., 591 F.3d
- 36 -
250, 255 (4th Cir. 2009) (citing Iqbal, 556 U.S. at 678)
("[B]are assertions devoid of further factual enhancement fail
to constitute well-pled facts for Rule 12(b)(6) purposes.").
Similarly, Danny's resistance to attending school sometime
in the spring of 2011, his and his mother's meeting with a
social worker, and his mother's meeting with then-Principal Grim
do not plausibly establish the foreseeability of Nevarez's
alleged abuse of Minor Plaintiffs. In hindsight, Danny's
behavior might have been indicative of sexual abuse. In North
Carolina, however, the duty of ordinary care "does not require
perfect prescience . .
." Fussell, 364 N.C. at 226, 695 S.E.2d
at 440. Plaintiffs' allegations concerning Nevarez's previous
abuse at other schools state that the abuse was not reported,
making it less likely that the social worker and then-Principal
had any heightened suspicion of child abuse. The social worker's
suspicion that Danny's behavior stemmed from Danny's father's
deployment to Afghanistan, and Principal Grim's suspicion that
Danny was having general behavioral issues typical of children
his age, were both reasonable. (See Am. Compl. (Doc. 39) 11 65,
67.)
Plaintiffs rely primarily on Adam's October 11, 2011
disclosure to establish the Government's knowledge of a specific
threat and knowledge of Nevarez's prior criminal activity.
- 37 -
(Pls.' Opp'n Br. (Doc. 46) at 15-16.)14
Adam's disclosure,
Plaintiffs argue, was particularly probative because the
disclosure detailed abuse in the same location, of the same
type, and of a sufficient amount given that it was the very same
conduct that allegedly occurred immediately after Adam's
disclosure. (Id. at 16-18 (citing Durden, 736 F.3d at 302;
Connelly, 141 N.C. App. at 588, 540 S.E.2d at 41).)
The Government relies on the Fourth Circuit's decision in
Durden to argue that Adam's disclosure does not establish
foreseeability. (Gov't Br. (Doc. 41) at 27.) In Durden, the
Fourth Circuit held that an Army Specialist's rape of a Fort
Bragg resident was not foreseeable based on the Specialist's
prior statements that he wanted to kill himself and other
members of his Army unit, as well as a prior burglary and
assault occurring off of the military installation. 736 F.3d at
302-04. The Fourth Circuit found that mere desires to harm
others did not constitute "prior criminal activity" for
This court summarily finds that the Complaint alleges no
facts as to Minor Plaintiffs Robby or Timmy to establish the
foreseeability of Nevarez's abuse prior to Adam's October 11,
2011 disclosure. Plaintiffs do allege that Defendants assigned
Nevarez to work with Robby after Adam's October 2011 disclosure.
Because this court ultimately finds that Plaintiffs plausibly
establish foreseeability through Adam's disclosure, Plaintiffs
are entitled to discovery to ascertain if and how many times the
Government assigned Nevarez to Timmy's classroom and to work
with Robby after Adam's disclosure.
14
- 38 -
foreseeability purposes. See id. at 303. The court also found
that the Specialist's burglary and assault three months prior
did not make the rape foreseeable because of the third
foreseeability factor outlined in Connelly - the amount of prior
criminal activity. Durden, 736 F.3d at 304 (citing Murrow v.
Daniels, 321 N.C. 494, 501-03, 364 S.E.2d 392, 397-98 (1988);
Connelly, 141 N.C. App. at 589, 540 S.E.2d at 42; Urbano v. Days
Inn of Am., Inc., 58 N.C. App. 795, 798, 295 S.E.2d 240, 242
(1982)). In Durden, plaintiff's reliance on a single incident of
prior criminal activity three months prior was insufficient to
"render a future attack foreseeable." 736 F.3d at 304.
Applying Durden to Adam's disclosure, the Government argues
that, like the rapist's prior suicidal and homicidal
expressions, "there [wals nothing obviously criminal in what
Adam allegedly said." (Gov't Br. (Doc. 41) at 29.) At this
motion to dismiss stage, this court is not convinced. Plaintiffs
allege that, on October 11, 2011, Adam told Defendant Coleman
that "Nevarez was touching him and making him sit on Nevarez's
lap and that he did not want to attend school anymore because he
was scared that Nevarez would be there and touch him again."
(Am. Compl. (Doc. 39) f 81.) Adam's stated fear about Nevarez to
Coleman, which she allegedly disclosed to McBroom and Nevarez,
plausibly establishes the Government's knowledge of a specific
- 39 -
threat against Adam at this time. The weight and credibility to
be assigned Adam's report cannot be fully assessed at this time.
However, at the very least, Adam's report of uninvited touching
and related conduct, coupled with Adam's alleged psychological
discomfort with that contact, give rise to a plausible concern
with Nevarez's physical contact with a student. Reporting the
information directly to the accused teacher plausibly suggests
that Defendants ignored a clear statement of potential child
abuse and further ignored the potential for some type of
retaliation, which Plaintiffs allege occurred. (See id. 1111 98102.)
The court also finds that Plaintiffs plausibly allege
foreseeability through Adam's disclosure under the three-factor
prior criminal activity framework from Connelly, applied by the
Fourth Circuit in Durden. Under North Carolina law, taking
indecent liberties with a student is a crime. See N.C. Gen.
Stat. § 14-202.4(d)(1). "Indecent liberties" means:
(a) willfully taking or attempting to take any
immoral, improper, or indecent liberties with a
student for the purpose of arousing or gratifying
sexual desire; or (b) willfully committing or
attempting to commit any lewd or lascivious act upon
or with the body or any part or member of the body of
a student.
Id. A nine- or ten-year-old boy's allegation that a teacher was
touching him and that he was scared to return to school because
- 40 -
of that touching is plausibly probative of prior criminal
activity. The full scope of the activity, the potential notice,
and whether it was sufficient to place Defendants on notice will
have to be addressed at a later stage of the proceedings.
Further, as Plaintiffs reiterated at oral argument, the
Complaint alleges that Adam's mother used the term sexual abuse
in her discussion with Coleman and that Coleman responded that
Defendants take allegations of sexual abuse seriously. (Am.
Compl. (Doc. 39) ¶¶ 85, 88.) Plaintiffs allege that Coleman
understood the seriousness of the disclosure, whether she and
McBroom found it reasonable is not a question that can be
resolved in this case at the motion to dismiss stage.
Adam's disclosure concerned abuse of the exact same type
and in the exact same location as that which allegedly
immediately followed Coleman's conversation with Nevarez. While
a single incident of prior criminal activity (a burglary and
assault) did not establish the foreseeability of a later
criminal act (rape) in Durden, 736 F.3d at 304, this court does
not find as a matter of law, at this juncture, that a single
incident indicating child sexual abuse cannot establish the
foreseeability of a subsequent act of child abuse.
This court's research suggests that courts have drawn no
bright lines regarding the number and frequency of criminal
- 41 -
incidents that will give rise to a duty to protect from
foreseeable harm. The court acknowledges that caselaw from both
North Carolina and other jurisdictions suggests that neither a
single incident nor sporadic incidents of prior criminal
activity are sufficient at various stages of the proceedings to
establish foreseeability. See, e.g., Connelly, 141 N.C. App. at
589, 540 S.E.2d at 42 (one hundred instances over five years
sufficient); Murrow, 321 N.C. at 501-03, 364 S.E.2d at 397-98
(one hundred instances over four-and-a-half years sufficient);
Urbano, 58 N.C. App. at 798, 295 S.E2d at 242 (forty-two
instances over three years and twelve in three-and-a-half months
immediately preceding alleged harm sufficient); Sawyer v.
Carter, 71 N.C. App. 556, 562, 322 S.E.2d 813, 817 (N.C. Ct.
App. 1984) (occasional robberies in the same general area and
one at same location five years prior insufficient); Grisham v.
Wal-Mart Stores, Inc., 929 F. Supp. 1054, 1058 (E.D. Ky. 1995),
aff'd sub nom. Grisham v. Wal-Mart Properties, Inc., 89 F.3d 833
(6th Cir. 1996) (unpublished table decision) (citation omitted)
(single act insufficient); Garner v. McGinty, 771 S.W.2d 242,
248 (Tex. App. 1989) (single act three months prior
insufficient). None of these cases, however, including most
importantly those North Carolina cases that the Fourth Circuit
relied on in Durden - Connelly, Murrow, and Urban°, see Durden,
- 42 -
736 F.3d at 304 - involved child abuse. For that reason, this
court does not find them particularly compelling on the
foreseeability issue.
The mandatory reporting regimes in this criminal context
make child abuse unique. In addition, in light of both state and
federal sex offender registration requirements, see, e.g., N.C.
Gen. Stat. § 14-208.5 et seq. and 34 U.S.C. § 20901 et seq., it
seems reasonable to infer that sexual abuse carries a heightened
risk of future crimes in comparison to other criminal conduct.
The reporting and registration requirements exist in part to
prevent likely recurrence. And their existence - and
non-existence in other criminal contexts - evinces the
significance of a single act of child abuse. This court
therefore finds that Plaintiffs plausibly allege foreseeability
based on Adam's disclosure.
Plaintiffs plausibly allege the Government's breach of its
duty to Minor Plaintiffs as well. Plaintiffs allege that
Defendant McBroom assigned Nevarez to the Minor Plaintiffs'
classrooms on seventeen days after Adam's disclosure, that they
assigned Nevarez to work with Robby after Adam's disclosure, and
explicitly that Nevarez's abuse of Adam continued after Adam's
disclosure. The court can plausibly infer from the timing of
Wyatt's November 2011 disclosure and Danny's early 2012
- 43 -
disclosure that Nevarez abused them after Adam's disclosure.
These allegations are enough to survive a motion to dismiss.
See, e.g., Daniels ex rel. Webb v. Reel, 133 N.C. App. 1, 11,
515 S.E.2d 22, 29 (1999) (citation omitted) ("Ordinarily, it is
a jury's province to determine issues of breach and
causation.").
Plaintiffs are entitled to discovery to unearth the
Government's response to Adam's disclosure, its actions and
omissions in the interim between Adam's disclosure and Nevarez's
removal from the base (whenever that date certain is uncovered
to be), and the facts and circumstances surrounding any
assignment of Nevarez to Minor Plaintiffs' classrooms or as
Robby's parapro in the weeks that followed Adam's disclosure.15
The Government's motion to dismiss Plaintiffs' first and
sixth claims will be denied as to all Plaintiffs and as to the
The court finds at this motion to dismiss stage that any
abuse of Minor Plaintiffs that postdated Adam's disclosure was
foreseeable. In addition, the court finds that Wyatt's
November 8, 2011 disclosure contributes to a foreseeability
finding. While it appears that Defendants removed Nevarez from
the classroom immediately thereafter, Plaintiffs allege that
Nevarez had ongoing access to Minor Plaintiffs until March 2012.
15
- 44 -
Government's actions beginning on October 11, 2011 and
continuing thereafter.16
2.
Claim II: Assumption of a Duty/Good Samaritan
In their second claim for relief, Plaintiffs allege that
the Government voluntarily assumed a duty to protect from,
report, investigate, and treat sexual abuse. Plaintiffs allege
that "a federal statute, and a series of Army regulations,
policy statements, memoranda, and reports have imposed on the
Defendants a duty to prevent, report, investigate, identify, and
treat children who are sexually abused in DoDEA schools," (Am.
Compl. (Doc. 39) 1 36), and that the Government "assumed these
duties and engaged in specific tasks and provided specific
16
At this point, Plaintiffs' first and sixth claims for
relief are plausible based on the Government's alleged knowledge
that arose on or after October 11, 2011. It might be that
discovery reveals facts that would allow the Plaintiffs to
plausibly allege an earlier date. For that reason, the court
will dismiss allegations preceding October 11, 2011 without
prejudice to Plaintiffs amending the Complaint on a later date
to allege the Government's knowledge on an earlier date if facts
gleaned during discovery support amendment.
- 45 -
services in order to fulfill these mandates." (Id.)17
Plaintiffs
argue that their second claim for relief states a claim under
North Carolina's Good Samaritan doctrine, imposing analogous
duties to the DoD Regulations. (Pls.' Opp'n Br. (Doc. 46) at
20.)
An agency of the United States must perform a task it has
voluntarily undertaken with due care. Rogers v. United States,
397 F.2d 12, 14 (4th Cir. 1968). But the FTCA's law-of-the-place
requirement asks whether the United States assumed a duty to act
with reasonable care in accordance with North Carolina's Good
Samaritan doctrine, if one exists.
North Carolina courts have recognized a Good Samaritan
duty. Edwards v. GE Lighting Sys., Inc., 200 N.C. App. 754, 758,
For the reasons provided herein, this court has already
found that the DoD regulations do not create an independent duty
because they are either ensnared by the intentional tort
exception or certain duties (e.g., to investigate and treat
child abuse) are precluded by the FTCA's private-person
principle. In addition, in Sheridan II, the Fourth Circuit
concluded that the Navy's promulgation of the two firearmsrelated regulations did not establish a duty under the Maryland
Good Samaritan doctrine because plaintiffs "suffered no greater
risk of harm . . . because of the gratuitous promulgation of the
regulations and their breach than if the [government] had never
promulgated such regulations in the first instance." 969 F.2d at
74-75; but cf. Peal by Peal v. Smith, 115 N.C. App. 225, 230-31,
444 S.E.2d 673, 677 (1994), aff'd, 340 N.C. 352, 457 S.E.2d 599
(1995) ("[I]t is well established in North Carolina that the
breach of a voluntarily adopted safety rule is some evidence of
defendant's negligence."). Plaintiffs here do not demonstrate
how the Government's promulgation of the DOD regulations made it
more likely that Nevarez would sexually abuse the children.
17
- 46 -
685 S.E.2d 146, 149 (2009); see also Davidson v. Univ. of N.C.
at Chapel Hill, 142 N.C. App. 544, 558, 543 S.E.2d 920, 929
(2001) (citing Pinnix v. Toomey, 242 N.C. 358, 362, 87 S.E.2d
893, 897 (1955)) ("The voluntary undertaking theory has been
consistently recognized in North Carolina, although it is not
always designated as such."). In North Carolina, "under certain
circumstances, one who undertakes to render services to another
which he should recognize as necessary for the protection of a
third person . . . is subject to liability to the third person,
for injuries resulting from his failure to exercise reasonable
care in such undertaking." Edwards, 200 N.C. App. at 758, 685
S.E.2d at 149.
Plaintiffs cite Boles (a case applying Virginia law) as an
example of a case where a court allowed an assumption of duty
claim. (Pls.' Opp'n Br. (Doc. 46) at 12 (citing Boles v. United
States, 3 F. Supp. 3d 491, 501 (M.D.N.C. 2014)).) There, Coast
Guard employees assisted a colleague with mental health issues
in storing his firearms in the Coast Guard Armory, and, in so
doing, allegedly assumed a duty to act with reasonable care in
that undertaking. Boles, 3 F. Supp. 3d at 505-06. The plaintiff
alleged that the Coast Guard employees breached their assumed
duty when they later assisted the tortfeasor in removing his
firearms from the Coast Guard's Armory in violation of a
- 47 -
protective order (that one of them knew about) and failed to
warn the tortfeasor's wife, ultimately leading to the
plaintiff's injury. Id. at 505. The court in Boles looked to the
Restatement (Second) of Torts § 324A, which Virginia courts
apply in formulating Virginia's assumption of duty doctrine, and
found that the plaintiff plausibly alleged that he was in the
class of persons who could be harmed upon the Coast Guard
employees' return of the firearms. Id. at 507.
In Edwards, the North Carolina Court of Appeals implied
that North Carolina's voluntary assumption of the duty was
derived from the Restatement (Second) of Torts § 324A. See 200
N.C. App. at 758, 685 S.E.2d at 149. There is some dispute
within the North Carolina courts, however, as to the
Restatement's authority. Compare Edwards, 200 N.C. App. at 758,
685 S.E.2d at 149; Quail Hollow E. Condo. Assoc. v. Donald J.
Scholz Co., 47 N.C. App. 518, 522-24, 268 S.E.2d 12, 15-17
(1980) (relying upon the Restatement (Second) of Torts § 324A in
finding a voluntarily assumed duty to protect a third party),
with Cassell v. Collins, 344 N.C. 160, 163, 472 S.E.2d 770, 772
(1996) (citation omitted) ("We reemphasize yet again that the
Restatement of Torts is not North Carolina law."), abrogated on
other grounds by Nelson v. Freeland, 349 N.C. 615, 507 S.E.2d
882 (1998); Hedrick v. Rains, 344 N.C. 729, 729, 477 S.E.2d 171,
- 48 -
172 (1996) ("[W]e note with disapproval the citation of the
Restatement (Second) of Torts as authority. Except as
specifically adopted in this jurisdiction, the Restatement
should not be viewed as determinative of North Carolina law.").
This court is currently unaware of any decision by the North
Carolina Supreme Court explicitly adopting Sections 323 or 324A
of the Restatement of Torts. See Dawkins v. United States, 226
F. Supp. 2d 750, 755 (M.D.N.C. 2002) ("[T]he North Carolina
Supreme Court has not recognized a tort law duty based upon
Section 324A of the Restatement of Torts."). And in light of the
North Carolina Supreme Court's admonitions in Cassell and
Hedrick, this court finds it unlikely that the North Carolina
Supreme Court would impose the Restatement's formulation of the
Good Samaritan duty on a private person under the circumstances
here.
Comparing Lumsden and Durden, both FTCA cases where federal
courts applied North Carolina law, is helpful here. In Lumsden,
a Marine corpsman's vehicle was impounded after he was caught
inhaling ether. 555 F. Supp. 2d at 582. Marine corpsmen later
returned the vehicle to him, and the corpsman then inhaled an
intoxicating amount of ether remaining in the vehicle, drove his
vehicle, and caused an accident, killing one. Id. The court in
- 49 -
Lumsden framed its inquiry as to the plaintiff's general
negligence theory as:
[I]f a private person were to deliver to a known
abuser of the chemical compound, ether, both the keys
to the known abuser's vehicle and a canister of ether
belonging to the private person, would that private
person be answerable to third parties injured when the
known abuser foreseeably became dangerously
intoxicated from huffing the ether, resulting in a
traffic collision that caused injury and death .
Id. at 588. The district court answered that question in the
affirmative at the motion to dismiss stage, and the court found
that plaintiff had plausibly alleged that the "Government's
agents knew or had reason to know that upon being provided the
keys to his car and a canister of ether," the defendant would do
what he did, triggering a duty owed by the agents because that
risk was both unreasonable and foreseeable. Id. at 589 (citing
Mullis v. Monroe Oil Co., Inc., 349 N.C. 196, 205, 505 S.E.2d
131, 136-37 (1998)).
In Durden, the Fourth Circuit distinguished the conduct at
issue from that in Lumsden. In Durden, the Government only knew
about one prior criminal act by the tortfeasor when he raped the
plaintiff - a burglary and non-sexual assault three months
prior. 736 F.3d at 304-06. The government, however, did not know
about other burglaries and sexual assaults committed by the
tortfeasor until after the rape. Id. at 306. So when it released
him from civilian confinement six weeks before the rape and
- 50 -
allegedly assumed a duty to protect the plaintiff, the
Government did not know about the tortfeasor's prior sexual
assaults. Id. at 305. Therefore, the Fourth Circuit found that
there was "nothing in the record to indicate that the Army
should have known that [the tortfeasor] was a threat to
[plaintiff's] safety based solely on the [burglary and nonsexual assault]." Id. at 306. Significantly, the court wrote
that "[i]t might be a different case if the Army knew that it
was one of its own soldiers, and [the tortfeasor] specifically,
that committed the 2008 and 2009 sexual assaults .
." Id.
(emphasis added). Under those circumstances, the government
might have assumed a duty to protect plaintiff upon the
tortfeasor's release from civilian confinement. See id.
The Government's knowledge of an allegation from an actual
victim of Nevarez's sexual abuse distinguishes this case from
Durden. The court has already found that Plaintiffs plausibly
allege that Nevarez's abuse after October 11, 2011 was
foreseeable. Further, Plaintiffs allege that, during Adam's
disclosure to Coleman, Adam's mother demanded that "something be
done about Nevarez to prevent future abuse of her son and others
(Am. Compl. (Doc. 39) ¶ 88.) They further allege that
Coleman assured Adam's mom that something would be done, and
that Adam and his mother relied on Coleman to do what she
- 51 -
promised - "to report the matter [and] make sure it was
investigated." (Id. ¶¶ 89, 92.) This voluntarily assumed duty
arose "from the factual context immediately preceding the
alleged assault(s) - and had nothing to do with [Nevarez's]
employment relationship with the [DoD]." See Bajkowski v. United
States, 787 F. Supp. 539, 542 (E.D.N.C. 1991). Though factually
different from Lumsden, the inquiry in this case is the same: if
a private person were to be in receipt of an allegation of
sexual abuse, assured the complaining party that something would
be done, took the allegation to the suspected abuser, and then
left the abuser alone with the alleged child victim, would that
private person be answerable to injured parties when the
suspected abuser foreseeably sexually assaulted the victim,
resulting in injury? See Lumsden, 555 F. Supp. 2d at 588. Taking
the allegations in the Complaint as true at this motion to
dismiss stage, this court has little trouble answering that
question in the affirmative as to Adam.
In addition, at this stage of the proceedings, the court
also views the Government's provision of services to an autistic
child as a voluntary assumption of a duty, subjecting the
Government to liability for their failure to exercise reasonable
care in such undertaking. See Durden, 736 F.3d at 305 (quoting
Quail Hollow E. Condo Ass'n, 47 N.C. App at 522, 268 S.E.2d at
- 52 -
15). Plaintiffs allege that the Government assigned Nevarez to
work with Robby after Adam's disclosure. Doing so is plausibly
unreasonable, though whether the Government used reasonable care
in attending to the situation is generally a question for the
jury. See Klassette v. Mecklenburg Cty. Area Mental Health,
Mental Retardation & Substance Abuse Auth., 88 N.C. App. 495,
502, 364 S.E.2d 179, 184 (1988).
Wyatt, Danny, and Timmy's allegations here fall short.
Because the court declines to find that the DOD regulations
imposed a voluntarily assumed duty, Plaintiffs do not plausibly
allege that the Government voluntarily assumed a duty to
protect, report, investigate, and provide treatment as to Wyatt,
Danny, or Timmy.
North Carolina courts generally require affirmative conduct
before finding a voluntarily assumed duty, and the Complaint's
allegations are deficient in that regard as to Wyatt, Danny, and
Timmy. McCants, 201 F. Supp. 3d at 743 (collecting cases) ("[A]
review of North Carolina court decisions confirms that
imposition of an actionable duty of care based on any
undertaking, irrespective of its source, requires affirmative
conduct by the alleged tortfeasor."). Unlike Adam's disclosure,
the Complaint does not plausibly allege an affirmative
undertaking by Coleman or McBroom as to Wyatt, Danny, and Timmy
- 53 -
that would create a Good Samaritan duty under North Carolina
law. The Complaint's allegations surrounding Wyatt's and Danny's
disclosures actually suggest the opposite. (See Am. Compl. (Doc.
39) ¶¶ 128, 130 (alleging that McBroom offered Wyatt's parents
nothing by way of assistance; alleging that nobody responded to
Wyatt's parents' pleas for help); id. ¶¶ 59-68 (describing thenPrincipal Grim's and the social worker's dismissal of Danny's
mom's concerns in June 2011).)
For these reasons, the Government's motion to dismiss
Plaintiffs' second claim for relief will be granted as to Minor
Plaintiffs Wyatt, Danny, and Timmy and denied as to Adam and
Robby on the narrow ground that the Government voluntarily
assumed a duty to protect, report, and investigate sexual abuse
of Adam and Robby following the October 11, 2011 disclosure.
3.
Claim III: Special Duty; Claim IV: Special
Relationship
Plaintiffs allege in their third and fourth claims for
relief a special duty and a special relationship between the
Government and Minor Plaintiffs, respectively. (Am. Compl. (Doc.
39) ¶¶ 314-16, 324.) Portions of Plaintiffs' fifth and sixth
claims for relief, predicated respectively on negligence per se
and premises liability, also allege a special relationship. (Id.
¶¶ 340, 346.)
- 54 -
North Carolina courts have acknowledged an exception to the
general rule that there is no duty to protect another from a
third party where there exists a "special relationship between
the defendant and [a] third person which imposes a duty upon the
defendant to control the third person's conduct; or a special
relationship between the defendant and the injured party which
gives the injured party a right to protection." Scadden v. Holt,
222 N.C. App. 799, 802, 733 S.E.2d 90, 92 (N.C. Ct. App. 2012)
(citation and internal quotation marks omitted). Special
relationships, however, "arise only in narrow circumstances."
Bridges v. Parrish, 366 N.C. 539, 541, 742 S.E.2d 794, 797
(2013). North Carolina courts have found that the following
special relationships establish affirmative duties beyond an
ordinary standard of care: "(1) parent-child; (2) masterservant; (3) landowner-licensee; (4) custodian-prisoner; and (5)
institution-involuntarily committed mental patient." King v.
Durham Cty. Mental Health Developmental Disabilities & Substance
Abuse Auth., 113 N.C. App. 341, 346, 439 S.E.2d 771, 774 (1994);
but cf. Davidson, 142 N.C. App. at 555, 543 S.E.2d at 927
(finding special relationship existed between university and its
cheerleaders premised in part on the existence of mutual
dependence but cautioning that the "holding should not be
interpreted as finding a special relationship to exist between a
university . . . and every student").
North Carolina courts have had ample time and opportunity
to add the school-student relationship to the enumerated
special-relationship categories and they have declined to do so.
Cf. Stevenson v. Martin Cty. Bd. of Educ., 3 F. App'x 25, 30-31
(4th Cir. 2001) (collecting cases) ("Several circuits have been
faced with the issue of whether a school-student relationship is
a special relationship triggering the protections of the Due
Process Clause. They have held uniformly that no special
relationship exists . .
."). Instead, North Carolina courts
consider the school-student relationship under a general
negligence standard, i.e., teachers in North Carolina must
"exercise
ordinary prudence given the particular
circumstances of the situation." Payne v. N.C. Dep't. of Human
Res., 95 N.C. App. 309, 314, 382 S.E.2d 449, 452 (1989)
(citation omitted) (declining to find that an instructor owed a
deaf student a "greater than normal" duty). This court,
therefore, finds that the Supreme Court of North Carolina would
not find that a special relationship exists between the
Government and Minor Plaintiffs.
Plaintiffs urge that North Carolina courts would find that
a special relationship or duty exists here because of the
- 56 -
Government's unique ability to control Nevarez. (Pls.' Opp'n Br.
(Doc. 46) at 24.) It is true that North Carolina courts have
left open the possibility of additional special relationships.
See e.g., Scadden, 222 N.C. App. at 802-03, 733 S.E.2d at 93
(footnote omitted) ("[W]here the underlying justification for
imposing a duty to protect . . . applies, a court may find that
a special relationship exists."). But a North Carolina court
would likely look to its two-pronged test for establishing a
special relationship, focusing on the government's (i) knowledge
of the tortfeasor's violent propensities and (ii) ability to
control the tortfeasor. See Durden, 736 F.3d at 305 (citing
Stein, 360 N.C. at 331, 626 S.E.2d at 269 (setting forth the
two-pronged test for a special relationship)).
Plaintiffs argue that, because the Army has the authority
under 18 U.S.C. § 1382 to bar individuals from entering military
bases, the Government's ability to control Nevarez was not
dependent on the employment relationship. (Pls.' Opp'n Br. (Doc.
46) at 24.) 18 U.S.C. § 1382 prohibits any person from
reentering any military installation "after having been removed
therefrom or ordered not to reenter by any officer or person in
command or charge thereof . .
." While the court agrees with
Plaintiffs that the DoD's right to control access to its
military installations is in no way conditioned on the
- 57 -
employment status of entrants, it is conditioned on the
Government's status as the federal government (and the land's
status as property of the Army, Navy, or Coast Guard). Thus, the
Government's ability to control Nevarez is of no help in
satisfying the FTCA's private-person principle. See Durden, 736
F.3d at 305 (citing 28 U.S.C. § 1346(b)(1)). Setting aside the
Government's ability to control Nevarez through the employment
relationship or through its status as the military, the
Government had no ability to control Nevarez in a manner that
causes this court to hesitate in granting the Government's
motion to dismiss as to Claims III and IV, as well as Claims V
and VI to the extent they are premised on a special
relationship.
4.
Claim V: Negligence Per Se
Plaintiffs premise their fifth claim for relief on the
doctrine of negligence per se. Under North Carolina law, to
prevail on a negligence per se claim, a plaintiff must plausibly
allege:
(1) a duty created by a statute or ordinance; (2) that
the statute or ordinance was enacted to protect a
class of persons which includes the plaintiff; (3) a
breach of the statutory duty; (4) that the injury
sustained was suffered by an interest which the
statute protected; (5) that the injury was of the
nature contemplated in the statute; and (6) that the
violation of the statute proximately caused the
injury.
- 58 -
Birtha v. Stonemor, N.C., LLC, 220 N.C. App. 286, 293-94, 727
S.E.2d 1, 8 (2012) (citation omitted). More generally, the rule
in North Carolina is that "the violation of a public safety
statute constitutes negligence per se." Stein, 360 N.C. at 326,
626 S.E.2d at 266 (alterations and citation omitted). A public
safety statute is one "imposing upon the defendant a specific
duty for the protection of others." Id. (alterations and
citation omitted). "A member of a class protected by a public
safety statute has a claim against anyone who violates such a
statute when the violation is a proximate cause of injury to the
claimant." Hart v. Ivey, 332 N.C. 299, 303, 420 S.E.2d 174, 177
(1992) (citation omitted). However, "in FTCA cases courts have
generally refused to find the necessary state law duty in an
assertedly violated federal statute or regulation merely because
the law of the relevant state included a general doctrine of
negligence per se." Boles, 3 F. Supp. 3d at 509 (certain
citations omitted) (citing Johnson v. Sawyer, 47 F.3d 716, 72829 (5th Cir. 1995)). Rather, the negligence per se claim must be
cognizable under the state's negligence per se law. Boles, 3 F.
Supp. 3d at 509. That is, in order to premise a negligence per
se claim on the violation of a federal statute in the FTCA
context, a state's negligence per se doctrine must allow a
- 59 -
plaintiff to base the negligence per se claim on the asserted
violation of a federal statute.
Plaintiffs appear to base their negligence per se claim on
34 U.S.C. § 20341 and the DoD regulations. Those, they allege,
"were enacted and promulgated with the specific purpose of
protecting the health, welfare, and public safety of the
children of military families . . . from the well-recognized
dangers of child sexual abuse." (Am. Compl. (Doc. 39)
I
336.)18
Plaintiffs argue that 34 U.S.C. § 20341 "specifically requires
school employees and officials working at federally operated
facilities," to report suspected child abuse. (Pls.' Opp'n Br.
(Doc. 46) at 25.) The Government argues that the federal bases
for Plaintiffs' negligence per se claim must "impose[] a duty on
a private person under North Carolina law." (United States'
Reply in Supp. of Mot. to Dismiss ("Gov't Reply Br.") (Doc. 49)
at 12-13.) The Government continues that Plaintiffs rely on only
one federal statute, imposing reporting obligations upon only
certain individuals on federal land, and Plaintiffs make no
attempt to show that the federal statute satisfies the
18
The court will focus on the reporting obligation under
34 U.S.C. § 20341. In addition to its previous discussion of the
DOD regulations, the court notes that Plaintiffs have not
attempted to analogize the DOD regulations allegedly requiring
the Government to protect, investigate, and treat to any similar
federal or state statute applicable to private persons that
could support a negligence per se claim in North Carolina.
- 60 -
negligence per se standard under North Carolina law. (Id. at
13.) The Government further argues that, even if that statute,
34 U.S.C. § 20341, meets the negligence per se standard in North
Carolina, the disclosures concerning Nevarez's conduct were not
sufficient to trigger the reporting requirement under either the
federal statute or analogous North Carolina statutes. (See id.
at 13-14.) As the Government points out, Plaintiffs argue for
the first time in their response brief that several North
Carolina laws are analogous to 34 U.S.C. § 20341. (See Pls.'
Opp'n Br. (Doc. 46) at 26.)
Courts generally do not consider a plaintiff's factual or
legal allegations raised in opposition to a motion to dismiss
and not alleged in the complaint. See, e.g., Car Carriers, Inc.
v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984)
(collecting cases) ("[I]t is axiomatic that the complaint may
not be amended by the briefs in opposition to a motion to
dismiss."). In the FTCA context, however, the Fourth Circuit has
instructed that courts should examine on their own "whether a
private person would be responsible for similar negligence under
the laws of the State where the acts occurred." Fla. Auto
Auction, 74 F.3d at 505 (quoting Rayonier, Inc. v. United
States, 352 U.S. 315, 319 (1957)). The court is also not
convinced that the North Carolina statutes are necessary to the
- 61 -
disposition of the negligence per se claim, so it will exercise
its discretion and consider them.
It appears that North Carolina courts would allow a
negligence per se claim based upon a violation of a federal
statute, which comports with Fourth Circuit precedent. See
Richardson v. United States, No. 5:08-CV-620-D, 2011 WL 2133652,
at *4 (E.D.N.C. May 26, 2011) (citing Fla. Auto Auction, 74 F.3d
at 502 n.2.) ("A violation of a federal regulation can give rise
to negligence per se liability under state [there, North
Carolina] law."); see also Grable & Sons Metal Prods., Inc. v.
Darue Eng'g & Mfg., 545 U.S. 308, 318-19 (2005) (citations and
internal quotation marks omitted) ("The violation of federal
statutes and regulations is commonly given negligence per se
effect in state tort proceedings."); cf. Fulmore v. Howell, 227
N.C. App. 31, 34, 741 S.E.2d 494, 496 (2013) (assuming arguendo
that the violation of the Code of Federal Regulations is per se
negligence). In addition, at least one court has allowed a
negligence per se claim to survive a motion to dismiss - in a
pre-Igpl case - predicated on the very reporting statute at
issue here, 34 U.S.C. § 20341. See Zimmerman ex rel. Zimmerman
v. United States, 171 F. Supp. 2d 281, 292-93 (S.D.N.Y. 2001).
Therefore, at this stage of the proceedings, Plaintiffs
plausibly allege that a private person under North Carolina law
- 62 -
could be liable on a theory of negligence per se predicated on a
breach of the reporting obligation under 34 U.S.C. § 20341.
In addition, Plaintiffs argue that analogous North Carolina
statutes contain reporting obligations that would apply to these
facts. And the FTCA permits negligence suits where the alleged
tortious breach of a duty "is tortious under state law" or where
"the Government ha[s] breached a duty imposed by federal law
that is similar or analogous to a duty imposed by state law."
Fla. Auto Auction, 74 F.3d at 502 (citing Rayonier, 352 U.S. at
319; Goldstar (Panama) S.A. v. United States, 967 F.2d 965, 969
(4th Cir. 1992)). Plaintiffs analogize 34 U.S.C. § 20341 to N.C.
Gen. Stat. § 115C-288(g), requiring school principals in North
Carolina to report sexual assault, sexual offense, or indecent
liberties with a minor upon actual notice or personal knowledge
of such conduct. (Pls.' Opp'n Br. (Doc. 46) at 26.)19
N.C. Gen.
Stat. § 115C-288(g) is sufficiently analogous at this motion to
dismiss stage to form the basis of Plaintiffs' negligence per se
claim, to the extent a state law obligation must.
Plaintiffs also cite N.C. Gen. Stat. § 115C-400, but the
court agrees with the Government that the reporting obligations
thereunder cover abuse not as relevant here. See N.C. Gen Stat.
§§ 7B-101, 7B-301, 14-202.1; see also Boles, 3 F. Supp. 3d at
512 (declining a motion to amend to add a negligence per se
claim premised on an inapplicable Virginia statute).
19
- 63 -
The Government also argues that the reporting obligations
under 34 U.S.C. § 20341 and N.C. Gen. Stat. § 115C-288(g) are
not applicable here because Adam's disclosure did not trigger
them. (See Gov't Reply Br. (Doc. 49) at 13.) The court disagrees
at this juncture. The statute defines child abuse to mean "the
physical or mental injury, sexual abuse or exploitation, or
negligent treatment of a child." 34 U.S.C. § 20341(c)(1). It
defines "mental injury" as "harm to a child's psychological or
intellectual functioning which may be exhibited by severe
anxiety, depression, withdrawal or outward aggressive behavior,
or a combination of those behaviors, which may be demonstrated
by a change in behavior, emotional response or cognition."
34 U.S.C. § 20341(c)(3). The statute defines "sexual abuse" to
include the use or coercion of a child to engage in sexually
explicit conduct or molestation of children. 34 U.S.C.
§ 20341(c)(4). Further, a covered individual with a reporting
obligation need only "learn[] of facts that give reason to
suspect that a child has suffered an incident of child abuse."
34 U.S.C. § 20341(a)(1). The analogous North Carolina statute
requires principals to report "sexual assault, sexual
offense,
. [or] indecent liberties with a minor," upon
actual notice or personal knowledge of such conduct. N.C. Gen.
Stat. § 115C-288(g). Under North Carolina law, "indecent
- 64 -
liberties" means the willful taking of any improper liberties
with a child or student for the purpose of gratifying sexual
desire or the willful committing of a lewd act upon the body of
a child or student. See N.C. Gen. Stat. §§ 14-202.1(a), 14202.4(d)(1).20
Based on the allegations in the Complaint, it is plausible
that Adam's October 11, 2011 disclosure triggered the federal
reporting obligation.21
His disclosure put Coleman and McBroom on
notice of, at the very least, Nevarez's mental injury of Adam
demonstrated by Adam's anxiety and fear that Nevarez would be at
school and touch him again, and plausibly gave them reason to
suspect that Nevarez had sexually abused Adam as defined under
34 U.S.C. § 20341. While N.C. Gen. Stat. § 115C-288(g) requires
actual notice or personal knowledge by the principal, Plaintiffs
plausibly allege such notice by alleging that Coleman told
Principal McBroom of Adam's disclosure, which at the very least,
The Government argues, and not without some persuasive
force, that Adam's 2011 disclosure does not amount to indecent
liberties. This may prove to be true. However, the combination
of the use of the term "touching," Adam's mental state, and his
mother's allegations appear to plausibly suggest at least an
inference of an improper liberty for the purpose of gratifying
sexual desire.
20
This court finds that Danny's change in behavior in the
spring of 2011, disclosed to a social worker in June 2011 and
then-Principal Grim shortly thereafter, as alleged, did not
trigger a reporting obligation under 34 U.S.C. § 20341 or North
Carolina law.
21
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provided McBroom with notice that Nevarez had taken indecent
liberties with Adam. The Complaint also alleges that the
Government breached its duty by not following the reporting
obligations after Adam's disclosure.
Alternatively, the November 2011 disclosure by Wyatt's
parents to Defendants Coleman and McBroom likely triggered the
reporting obligations. During that meeting, Coleman allegedly
denied that Nevarez sexually abused any student, and the court
can infer that the disclosure by Wyatt's parents raised a
suspicion of sexual abuse, and the Complaint plausibly alleges
McBroom's knowledge of indecent liberties. But it is less clear
that the reporting obligations were not followed after Wyatt's
disclosure. Plaintiffs allege that a November 8, 2011 report was
prepared and provided to Defendant Sicinski and it appears that,
after the disclosure by Wyatt's father to the Fort Bragg
Military Police on November 8, 2011, a criminal investigation
was opened shortly thereafter. At this time, however, the court
does not find that Plaintiffs' allegations concerning the
Government's noncompliance with its reporting obligations
following Wyatt's November 2011 disclosure fail as a matter of
law.
As to the Government's argument that 34 U.S.C. § 20341 does
not satisfy the negligence per se standard under North Carolina
- 66 -
law, this court concludes that 34 U.S.C. § 20341 and its state
law analogue are public safety statutes imposing specific duties
for the protection of others, the violations of which constitute
negligence per se. See Stein, 360 N.C. at 326, 626 S.E.2d at
266. Congress first introduced 34 U.S.C. § 20341 as part of the
Victims of Child Abuse Act of 1990 ("VACA"), then at 42 U.S.C.
§ 13001 et seq., and the legislative history suggests that it is
a public safety statute. See 136 Cong. Rec. S17595-01, S17600,
1990 WL 168469 ("[VACA is] a sweeping title aimed at mak[ing]
our criminal justice system more effective in cracking down on
child abusers, and more gentle in dealing with the child abuse
victims."); 136 Cong. Rec. S17595-01, S17606-07, 1990 WL 168469
("This bill has some really tough desperately needed child abuse
reform provisions. These provisions put in place protections for
the most defenseless Americans-our children."). So too with N.C.
Gen. Stat. § 115C-288(g), which was "intended to require
principals to report .
. to law enforcement officers in order
to facilitate the investigation and prosecution of crimes in
school." Powers and Duties of Principal; G.S. § 115C-288, Op.
Att'y Gen. (Sept. 8, 1998). This court also finds that Minor
Plaintiffs are members of the protected class.
Finally, Plaintiffs must plausibly allege that the
reporting breach proximately caused Minor Plaintiffs' injuries.
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Birtha, 220 N.C. App. at 293-94, 727 S.E.2d at 8. "Proximate
cause is a cause which in natural and continuous sequence,
unbroken by any new and independent cause, produced the
plaintiff's injuries, and without which the injuries would not
have occurred," and from which reasonably foreseeable
consequences were probable. Hairston v. Alexander Tank & Equip.
Co., 310 N.C. 227, 233, 311 S.E.2d 559, 565 (1984) (citations
omitted). There can be more than one proximate cause of an
injury. See State v. Leonard, 213 N.C. App. 526, 530, 711 S.E.2d
867, 871 (N.C. Ct. App. 2011) ("[E]ven if defendant's willful
attempt to elude arrest was a cause of [the] injury, defendant's
driving under the influence could also be a proximate cause.");
see also Boles, 3 F. Supp. 3d at 513 ("While [tortfeasor's]
intentional conduct was admittedly a proximate cause of [the
plaintiff's] injuries, the alleged negligence of Coast Guard
employees could also be a proximate cause .
Plaintiffs plausibly allege that the Government's failure
to report the disclosed abuse "as soon as possible," 34 U.S.C.
§ 20341, was a proximate cause of at least one incident of
alleged abuse of Adam. While Nevarez's intentional conduct was
obviously a proximate cause of the alleged abuse, the
Government's negligence could also be a proximate cause because
Nevarez's actions were a natural consequence of the Government's
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failure to report the abuse, thus delaying Nevarez's removal
from the classroom and ultimately the base. Plaintiffs are
entitled to discovery as to the facts and circumstances
surrounding any reporting, or lack therefore, that occurred
after Adam's October 11, 2011 disclosure.
It may well be that the Government will be entitled to
summary judgment on this claim, but the Complaint plausibly
alleges the existence of a duty supporting a negligence per se
claim, a question of law. See Davidson, 142 N.C. App. at 552,
543 S.E.2d at 926. And issues of breach and causation are
generally a jury's province. See Webb, 133 N.C. App. at 11, 515
S.E.2d at 29 (citation omitted).
Therefore, the Government's motion to dismiss Plaintiffs'
fifth claim for relief, to the extent that it alleges negligence
per se for failure to report suspected child abuse on or after
October 11, 2011, will be denied; to the extent that the fifth
claim for relief alleges negligence per se for failure to train
personnel, to protect children from sexual abuse, to investigate
such abuse, and to provide effective treatment, the Government's
motion to dismiss Plaintiffs' fifth claim for relief will be
granted.
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5.
Miscellaneous Arguments
The Government argues that Robby's claim was untimely
because Robby was suffering mental anguish and nightmares when
Nevarez was removed from the school in November 2011, which is
when the Government asserts that Robby's claim accrued. (Gov't
Br. (Doc. 41) at 34-35.) Because Robby's claim was not presented
to the Government until December 30, 2013, it was not timely
filed within the requisite two years under the FTCA. (Id.
(citing 28 U.S.C. § 2401(b)).)
Construing the facts in the light most favorable to
Plaintiffs, it is not clear whether Robby was suffering his
mental anguish and nightmares by November 2011, when Nevarez was
removed from the classroom, or by March 2012, when Nevarez was
removed from the installation. (See Am. Compl. (Doc. 39) 1 45.)
Nevertheless, this court finds at this time that Robby's claim
accrued on or around March 16, 2012, when Defendants told
Robby's parents that Nevarez had abused Robby, and was therefore
timely. The general rule is that, even though a child's minority
does not toll the running of the FTCA's statute of limitations,
see Jastremski v. Unites States, 737 F.2d 666, 669 (7th Cir.
1984), the FTCA's limitations period begins to run when the
parents (or plaintiff-guardians) become aware or should have
been aware of the existence and cause of injury, see Zavala v.
- 70 -
United States, 876 F.2d 780, 782 (9th Cir. 1989); MacMillan v.
United States, 46 F.3d 377, 381 (5th Cir. 1995) (citation
omitted); Miller v. United States, 803 F. Supp. 1120, 1128 (E.D.
Va. 1992) (citing Zavala, 876 F.2d at 782). This court is
currently unaware of a case imputing knowledge from a mentally
incompetent minor to that minor's parents for purposes of
meeting the FTCA's timeliness requirements.
The Government also argues that Plaintiffs' allegations
regarding the Government's failure to provide Minor Plaintiffs
with "prompt and effective treatment, care, and counseling,"
should be dismissed because they are medical malpractice claims
not brought in conformity with North Carolina Rule of Civil
Procedure 9(j), which requires a certification in the pleading
as to medical care and records. (Gov't Br. (Doc. 41) at 33-34);
see also N.C. R. Civ. P. 9(j). The Government argues that the
claims regarding tardy or ineffective medical treatment are
medical malpractice claims, clearly "aris[ing] out of the
furnishing or failure to furnish professional services . . . by
a health care provider." (Id. at 33 (quoting N.C. Gen. Stat.
§ 90-21.11(2)(a)).)
At this stage in the proceedings, the court rejects the
Government's argument. Plaintiffs' claims sound in ordinary
negligence and allege administrative and ministerial failures,
- 71 -
not failures to furnish professional services. See Stockton v.
Wake Cty., 173 F. Supp. 3d 292, 308 (E.D.N.C. 2016) (citing
Estate of Waters v. Jarman, 144 N.C. App. 98, 101-03, 547 S.E.2d
142, 144-46 (2001); Allen v. Cty. of Granville, 203 N.C. App.
365, 366-68, 691 S.E.2d 124, 125-27 (2010)). Thus, to the extent
those allegations have survived the Government's motion to
dismiss, they are not subject to the strictures of Rule 9(j).
III. THE INDIVIDUAL DEFENDANTS' MOTION TO DISMISS
The Individual Defendants moved to dismiss Plaintiffs'
Bivens claims pursuant to Rule 12(b)(6), arguing that they are
entitled to qualified immunity. (See Doc. 43 at 1, 12.)
Plaintiffs responded, (Doc. 47), and the Individual Defendants
replied, (Doc. 50). In their briefing, however, the parties
failed to address in any depth the threshold question of whether
a Bivens remedy is available to Plaintiffs. That inquiry is
especially salient after the Supreme Court's decision in Ziglar
v. Abbasi, where the Court cautioned lower courts about
extending Bivens to new contexts. 582 U.S.
, 137
S. Ct. 1843, 1857 (2017); cf. Liff v. Office of Inspector Gen.
for U.S. Dep't of Labor, 881 F.3d 912, 918 (D.C. Cir. 2018)
(internal quotation marks omitted) (quoting Hernandez v. Mesa,
U.S.
, 137 S. Ct. 2003, 2006 (2017)) ("[I]t is
appropriate to determine the availability of a Bivens remedy at
- 72 -
the earliest practicable phase of litigation because it is
antecedent to the other questions presented."). This court,
therefore, ordered supplemental briefing on whether, in light of
Abbasi, a Bivens remedy should be available to Plaintiffs here,
asking the parties to address specifically the availability of
alternative remedies. (See Text Order 02/13/19.) The Individual
Defendants and Plaintiffs each submitted a ten-page brief on the
issue. (Defs.' Suppl. Br. (Docs. 54, 56); Pls.' Suppl. Br. (Doc.
55).)
For the reasons that follow, this court will not extend an
implied cause of action to Plaintiffs to vindicate the
constitutional wrongs allegedly committed by these federal
officers in this new Bivens context. Plaintiffs' Claims VII-X
will be dismissed. 22
A.
Bivens Claims
In Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, the Supreme Court created a federal cause of action
against federal officers for their violations of the Fourth
Amendment. See 403 U.S. 388, 389 (1971). The Supreme Court's
decision, however, did not create general purpose liability for
22
The dismissal will include any allegations against the
John/Jane Doe Defendants, who at all relevant times were the
employees who failed to complete a thorough background check of
Nevarez and adequately train employees. (See Am. Compl. (Doc.
39) If 31-32.)
- 73 -
federal officials. Rather, the scope of Bivens liability is
limited, allowing claims against defendants sued in their
individual capacities based only on their own wrongdoing. See
Norton v. United States, 581 F.2d 390, 393 (4th Cir. 1978). A
defendant must have directly and personally participated in
violating a plaintiff's constitutional rights. Thus, there is no
respondeat superior liability in a Bivens action, Trulock v.
Freeh, 275 F.3d 391, 402 (4th Cir. 2001), and alleging mere
negligence is not enough, Housecalls Home Health Care, Inc. v.
United States Department of Health & Human Services, 515 F.
Supp. 2d 616, 624 (M.D.N.C. 2007) (citing Oxendine v. Kaplan,
241 F.3d 1272, 1275 (10th Cir. 2001)).
B.
The Supreme Court's Abbasi Framework
In Abbasi, the Supreme Court recently urged lower courts to
exercise restraint in creating implied causes of action against
federal officials to enforce constitutional rights in new
contexts. See 137 S. Ct. at 1857. The Court went so far as to
clarify that "expanding the Bivens remedy is now a 'disfavored'
judicial activity." Id. (quoting Iqbal, 556 U.S. at 675).
In Abbasi, a group of aliens who were detained after the
September 11th attacks brought claims against officers in the
Department of Justice and the wardens of the facility where they
were detained. 137 S. Ct. at 1851-52. Plaintiffs sought to
- 74 -
invoke Bivens, alleging that their detention and related acts
violated their Fourth Amendment rights and substantive due
process and equal protection rights under the Fifth Amendment.
Id. at 1853-54. Among other findings, the Supreme Court found
that plaintiffs' Fifth Amendment substantive due process claims
(the same constitutional violations alleged here) arose in a new
Bivens context. Id. at 1864-65. The Supreme Court vacated the
lower court's judgment and remanded for an analysis of any
special factors counselling hesitation in applying Bivens to a
new context. Id. at 1865.
Thus, whether a Bivens remedy is available depends on a
two-step inquiry. First, the court must decide whether a
plaintiff is seeking a Bivens remedy in a new Bivens context.
See Abbasi 137 S. Ct. at 1859-60. If not, then the analysis
under Abbasi is finished, and the court can analyze the merits
of the claim. If the court determines that a case does arise in
a new Bivens context, then second, before extending a Bivens
remedy, the court must analyze whether there are '"special
factors counselling hesitation in the absence of affirmative
action by Congress.'" Id. at 1857 (quoting Carlson v. Green, 446
U.S. 14, 18 (1980); Bivens, 403 U.S. at 396).
- 75 -
1.
A New Bivens Context
This case arises in a new Bivens context. And, after
briefing the issue, the parties agree. (See Defs.' Suppl. Br.
(Doc. 54) at 4; Pls.' Suppl. Br. (Doc. 55) at 4.)
A case arises in a new Bivens context if "[it] is different
in a meaningful way from previous Bivens cases decided by [the
Supreme] Court." Abbasi, 137 S. Ct. at 1859. In Abbasi, the
Supreme Court provided a non-exhaustive list of considerations
that might make a case meaningfully different, including:
[T]he rank of the officers involved; the
constitutional right at issue; the generality or
specificity of the official action; the extent of
judicial guidance as to how an officer should respond
to the problem or emergency to be confronted; the
statutory or other legal mandate under which the
officer was operating; the risk of disruptive
intrusions by the Judiciary into the functioning of
other branches; or the presence of potential special
factors that previous Bivens cases did not consider.
Id. at 1860.
The Supreme Court has provided a plaintiff with a Bivens
remedy only three times. In Bivens itself, the Court permitted a
damages remedy against federal officers who violated plaintiff's
Fourth Amendment rights. 403 U.S. at 397. In Davis v. Passman,
the Court extended a Bivens remedy to a plaintiff who sued a
Congressman for gender discrimination in violation of her Fifth
Amendment rights. 442 U.S. 228, 248-49 (1979). And in Carlson,
the Court approved of an implied damages remedy under the Eighth
- 76 -
Amendment. 446 U.S. at 19. This case meaningfully differs from
Bivens, Davis, and Carlson.
Plaintiffs allege that the Individual Defendants violated
Minor Plaintiffs' substantive due process rights under the Fifth
Amendment. (E.g., Am. Compl. (Doc. 39) ¶¶ 358-69.) In Davis, the
Supreme Court recognized an implied cause of action against a
federal official for his violation of a plaintiff's Fifth
Amendment right. 442 U.S. at 248-49. But "Bivens actions are not
recognized Amendment by Amendment in a wholesale fashion."
Wilson v. Libby, 498 F. Supp. 2d 74, 86 (D.D.C. 2007), aff'd,
535 F.3d 697 (D.C. Cir. 2008). Instead, Bivens actions "are
context-specific." Id.; see also F.D.I.C. v. Meyer, 510 U.S.
471, 484 n.9 (1994) ("[A] Bivens action alleging a violation of
the Due Process Clause of the Fifth Amendment may be appropriate
in some contexts, but not in others.").
In Davis, the Supreme Court extended a Bivens remedy to a
plaintiff where a'federal official violated her rights under the
equal protection component of the Fifth Amendment. Davis, 442
U.S. at 248-49; see generally Butts v. Martin, 877 F.3d 571, 590
(5th Cir. 2017) (citing Bolling v. Sharpe, 347 U.S. 497, 499
(1954); quoting United States v. Windsor, 570 U.S. 744, 774
(2013)) (explaining that the Fifth Amendment does not contain an
equal protection clause but that "the Fifth Amendment's Due
- 77 -
Process clause contains within it the prohibition against
denying any person the equal protection of the laws"). The
Supreme Court has not extended a Bivens remedy to an alleged
substantive or procedural due process violation of the Fifth
Amendment by a federal official. See Lanuza v. Love, 899 F.3d
1019, 1026 (9th Cir. 2018) (citing Abbasi, 137 S. Ct. at 186064) ("While the Supreme Court has not extended Bivens to a case
involving the substantive and procedural clauses of the Fifth
Amendment, Abbasi did not preclude the possibility of such an
extension.") 23
The Fourth Circuit, in Loe v. Armistead, extended a Bivens
remedy at the motion to dismiss stage against federal officials
who deliberately denied plaintiff adequate medical care in
violation of his due process rights under the Fifth Amendment.
582 F.2d 1291, 1294-96 (4th Cir. 1978), cert. denied, 446 U.S.
928 (1980). The Fourth Circuit, however, construed what was
23
In Abbasi, the Supreme Court found that petitioner's
prisoner abuse claim under the Fifth Amendment's substantive due
process component sought to extend Carlson, and derivatively,
Bivens, to a new context. 137 S. Ct. at 1864. The Supreme Court
vacated the lower court's decision and then remanded for an
analysis of any special factors counselling hesitation. Id. at
1865. On remand, the magistrate judge recommended that the
claims against the individual defendants be dismissed because
the FTCA provided plaintiffs with a sufficient alternative
remedy, precluding a Bivens remedy. Turkmen v. Ashcroft, No.
02-CV-2307 (DLI)(SMG), 2018 WL 4026734, at *12-13 (E.D.N.Y.
Aug. 13, 2018) (Gold, Mag. J.) (report and recommendation not
yet adopted). The case is still pending.
- 78 -
brought as an Eighth Amendment claim as a Fifth Amendment due
process claim because plaintiff was not a prisoner under a
judgment of conviction. Id. at 1293-94. In fact, in Carlson,
where the Supreme Court granted a Bivens remedy for an Eighth
Amendment violation, the Court noted that "another petition for
certiorari being held pending disposition of this case," i.e.,
Loe, warranted the court addressing whether a remedy was
available directly under the Constitution despite the
availability of the FTCA. Carlson, 446 U.S. at 16-17 & n.2
(citing Loe, 582 F.3d at 1291).
The Fourth Circuit decided Loe decades before the Supreme
Court decided Abbasi, again admonishing lower courts to exercise
restraint in extending Bivens remedies beyond contexts in which
the Supreme Court had done so. Also, the facts and rights at
issue in Loe more closely resemble those in Carlson than those
here. Thus, this court has little trouble finding that this case
arises in a new Bivens context based solely on the meaningful
difference of the constitutional right at issue here, see
Abbasi, 137 S. Ct. at 1860, that is, the Fifth Amendment
substantive due process right to attend elementary school free
of sexual abuse.
- 79 -
2.
Special Factors Counselling Hesitation
Turning to step two under the Supreme Court's framework in
Abbasi, this case involves several special factors counselling
hesitation. Cumulatively, those special factors cause this court
not to extend a Bivens remedy to Plaintiffs.
To be a "special factor counselling hesitation," a factor
need only cause a court to hesitate before answering "whether
the Judiciary is well suited, absent congressional action or
instruction, to consider and weigh the costs and benefits" of
extending a Bivens remedy. See Abbasi, 137 S. Ct. at 1858.
Though the Supreme Court has not exhaustively enumerated special
factors counselling hesitation, "two are particularly weighty:
the existence of an alternative remedial structure and
separation-of-powers principles." Bistrian v. Levi, 912 F.3d 79,
90 (3d Cir. 2018) (citing Abbasi, 137 S. Ct. at 1857-58). Other
special factors relevant here include: "whether Congress has
already acted in th[is] arena, suggesting it does not 'want the
Judiciary to interfere'; whether a claim addresses individual
conduct or a broader policy question; whether litigation would
intrude on the function of other branches of government; and
whether national security is at stake." Id. (quoting Abbasi, at
1856-63). This court proceeds with these principles in mind.
- 80 -
(a)
Alternative Remedies
The existence of an alternative remedial structure capable
of protecting the constitutional rights at stake can alone
preclude a court from authorizing a Bivens remedy in a new
context. See Abbasi, 137 S. Ct. at 1858; Liff, 881 F.3d at 918.
Alternative remedies "can take many forms, including
administrative, statutory, equitable, and state law remedies."
Vega v. United States, 881 F.3d 1146, 1154 (9th Cir. 2018). An
available remedial process need not provide complete relief, it
need only be adequate to vindicate the violation of the right at
issue in order to preclude a Bivens remedy. See Dunbar Corp. v.
Lindsey, 905 F.2d 754, 762 (4th Cir. 1990).
Here, there are other remedies available to Plaintiffs. But
this court does not find them sufficiently capable of protecting
the Minor Plaintiffs' constitutional rights to alone preclude
this Bivens action.
The FTCA, including the related administrative remedies
that must be exhausted thereunder, is the most apparent
alternative remedial avenue. Paradoxically, the Individual
Defendants argue that the FTCA itself might not be a sufficient
alternative remedy, (Defs.' Suppl. Br. (Doc. 54) at 6), and
Plaintiffs have essentially conceded that the viability of their
Bivens claims is dependent on their FTCA action being dismissed.
- 81 -
(See Pls.' Br. (Doc. 55) at 2 ("[T]he Bivens action should be
allowed to proceed if the Court dismisses the FTCA
action .
. .").) This court, however, does not find that the
FTCA precludes a Bivens remedy on its own, which, in turn, means
that the administrative remedies required to be exhausted under
the FTCA are not sufficient alternative remedies.
As they were required to, Plaintiffs attempted to avail
themselves of the FTCA-related administrative remedies. See 28
U.S.C. §§ 2401(b), 2675(a); (Am. Compl. (Doc
39) ¶ 19).
Plaintiffs allege that they "presented their claims to the
Office of the Staff Judge Advocate for administrative
settlement" and received no "substantive response." (Am. Compl.
(Doc. 39) ¶ 19.) Taking the allegation in the Complaint as true,
the available administrative remedies were not adequate. This is
not a case where administrative claims with a federal agency led
to a settlement offer. See Doe v. Meron, Civil Action No.
PX-17-812, 2018 WL 3619538, at *13 (D. Md. July 30, 2018),
appeal filed, No. 18-2024 (4th Cir. Sept. 5, 2018). And this is
not a case where administrative remedies otherwise provided
relief. See Goree v. Serio, 735 F. App'x 894, 895 (7th Cir.
2018) (finding administrative remedies that had in fact provided
relief in the form of expungement of a disciplinary report
- 82 -
related to the same conduct underlying the lawsuit were in part
sufficient to preclude a Bivens remedy).
As to the FTCA itself, the Supreme Court wrote in Carlson
that it was "crystal clear that Congress views FTCA and Bivens
as parallel, complementary causes of action .
." 446 U.S. at
19-20. Following the Supreme Court's decision in Abbasi,
however, some courts have found that the availability of an FTCA
claim precludes a related Bivens claim. For example, on remand
in Abbasi, the magistrate judge found that the FTCA was an
adequate alternative remedy to vindicate the constitutional
wrong at issue there. Turkmen, 2018 WL 4026734, at *9-*11. The
magistrate judge found that the Supreme Court in Abbasi took "a
far broader view of those alternative remedies that foreclose
assertion of a claim under Bivens." Turkmen, 2018 WL 4026734, at
*10 (comparing Carlson, 446 U.S. at 18-19 (finding Bivens claims
precluded "when defendants show that Congress has provided an
alternative remedy which it explicitly, declared to be a
substitute for recovery directly under the Constitution and
viewed as equally effective"), with Abbasi, 137 S. Ct. at 1858
(emphasis added) ("[I]f Congress has created any alternative,
existing process for protecting the injured party's interest
that itself may" preclude a Bivens remedy)). In this circuit,
district courts have disagreed on whether the availability of an
- 83 -
FTCA action precludes a Bivens remedy following the Supreme
Court's decision in Abbasi. Compare Linlor v. Poison, 263 F.
Supp. 3d 613, 621 (E.D. Va. 2017) (citations omitted) ("[T]he
Supreme Court has squarely held that the FTCA does not provide
an alternative remedial process bearing on the availability of a
Bivens remedy."), with Johnson v. Roberts, C/A No. 3:17-3017JFA-SVH, 2018 WL 6363921, at *5 (D.S.C. Oct. 17, 2018), report
and recommendation adopted, C/A No. 3:17-3017-JFA-SVH, 2018 WL
6344136 (D.S.C. Dec. 5, 2018) (finding a Bivens claim precluded
because the FTCA is a sufficient alternative remedy to "address
claims against the United States for personal injuries caused by
government employees acting within the scope of their
employment"); compare also Lineberry v. Johnson, Civil Action
No. 5:17-04124, 2018 WL 4232907, at *10 (S.D. W. Va. Aug. 10,
2018), report and recommendation adopted sub nom., Lineberry v.
United States, CIVIL ACTION NO. 5:17-CV-04124, 2018 WL 4224458
(S.D. W. Va. Sept. 5, 2018) (finding "that the FTCA and state
tort law" were not appropriate alternative remedies for
plaintiff's constitutional claims), with Clemmons v. United
States, Case No. 0:16-cv-1305-DCC, 2018 WL 4959093, at *3-*4
(D.S.C. Oct. 15, 2018) (noting alternative remedies of the
Federal Bureau of Prisons' administrative grievance process and
the FTCA in a case involving denial of access to courts under
- 84 -
the First Amendment). This court does not find that the Supreme
Court took such a broad view in Abbasi of those alternative
remedies precluding a Bivens action. Because the availability of
the FTCA (or alternative remedies generally) is not
determinative of Plaintiffs' Bivens claims surviving, a quick
summary will suffice.
First, the Supreme Court in Abbasi did not overrule any of
its precedent, which has consistently held or reiterated that
the FTCA is not an alternative remedy precluding Bivens claims,
as the Third Circuit recently reiterated in a post-Abbasi case.
See Bistrian, 912 F.3d at 92 (quoting Corr. Servs. Corp. v.
Malesko, 534 U.S. 61, 68 (2001); Carlson, 446 U.S. at 21; citing
Bush v. Lucas, 462 U.S. 367, 378 (1983)) ("[T]he existence of an
FTCA remedy does not foreclose an analogous remedy under Bivens.
According to the Supreme Court, it is 'crystal clear that
congress intended the FTCA and Bivens to serve as parallel and
complementary sources of liability.'"); see also, Wilkie v.
Robbins, 551 U.S. 537, 553-55 (2007) (quoting Carlson, 446 U.S.
at 19-20) (noting the Court's holding in Carlson that the "FTCA
and Bivens remedies were 'parallel, complementary causes of
action' and that the availability of the former did not preempt
the latter"). If the Supreme Court wanted to overrule its
earlier precedent in Abbasi, it would have done so explicitly.
- 85 -
Second, Bivens and FTCA actions vindicate different wrongs.
Bivens remedies vindicate violations of constitutional rights by
federal employees. See Bivens, 403 U.S. at 395-97. On the other
hand, federal constitutional violations are not necessarily
cognizable under the FTCA, which allows suit against the United
States in cases arising out of federal employees' negligence.
See Meyer, 510 U.S. at 477 (describing that the source of
liability under the FTCA is the law of the relevant state;
concluding that a "constitutional tort claim is not 'cognizable'
under § 1346(b)"); cf. Rodriguez v. Swartz, 899 F.3d 719, 740
(9th Cir. 2018), petition for cert. filed,
U.S.
, (U.S.
Sept. 7, 2018) (No. 18-309) (discussing the FTCA's exception
under 28 U.S.C. § 2679(b)(2)(A) for Bivens claims, ensuring that
"federal officers cannot dodge liability for their own
constitutional violations"). For similar reasons, though
Plaintiffs might have been able to pursue state tort claims
against Nevarez - he was presumably not acting within the scope
of his employment and thus the Westfall Act's immunity would not
preclude such a suit
state tort actions are unable to
vindicate an alleged constitutional violation of Plaintiffs'
Fifth Amendment substantive due process rights.
The FTCA remains today an insufficient "protector of the
citizens' constitutional rights . . . ." Carlson, 446 U.S. at
- 86 -
23. While certainly a special factor counselling hesitation, the
existence of the FTCA as a remedial alternative does not alone
compel this court to find that it precludes an extension of
Bivens here.24
(b)
Separation of Powers
This case presents significant separation-of-powers
concerns. Most notably, there has been substantial legislative
and executive activity in the child-abuse context, specifically
involving the military.
(i)
Legislative Action
24
The court notes two additional alternative remedies
without opining on the viability of either. First, as the
Individual Defendants argue, Plaintiffs might have been able to
pursue a claim under the Military Claims Act. (See Defs.' Suppl.
Br. (Doc. 54) at 7.) In Meron, a district court recently found
that the Military Claims Act "afforded Plaintiffs at least one
comprehensive and adequate avenue for relief." 2018 WL 3619538,
at *13 (citing 10 U.S.C. § 2733). Second, Plaintiffs might have
pursued a claim against Nevarez himself under 18 U.S.C. § 2255,
see infra at 89, for a violation of 18 U.S.C. § 2242, regarding
sexual abuse "in the special maritime and territorial
jurisdiction of the United States." See 18 U.S.C. § 7(3)
(defining "special maritime and territorial jurisdiction of the
United States" to include "[a]ny lands reserved or acquired for
the use of the United States . . . or any place purchased or
otherwise acquired by the United States by consent of the
legislature of the State in which the same shall be, for the
erection of a fort"); see also Smith v. Husband, 376 F. Supp 2d
603, 613 (E.D. Va. 2005) (criminal conviction is not a
prerequisite to an action under § 2255).
Relatedly, as to Plaintiffs' allegations regarding the
insufficiency of the criminal investigation, as the court told
the parties at oral argument, this court does not view criminal
investigations as adequate alternative remedies in this context.
- 87 -
"[L]egislative action suggesting that Congress does not
want a damages remedy is itself a factor counselling
hesitation." Abbasi, 137 S. Ct. at 1865. Legislation without a
standalone damages remedy, in contexts where the Supreme Court
has previously allowed a Bivens remedy, can strongly suggest
that Congress purposely chose not to extend a damages remedy to
private plaintiffs in those contexts. See id.
In the absence of the Supreme Court previously extending a
Bivens remedy to a plaintiff alleging sexual abuse at a
federally-operated school, Congress obviously could not extend
or preclude an existing Bivens remedy when it passed VACA in
1990 (and subsequently reauthorized it). See 34 U.S.C. § 20301
et seq. (The reporting statute at issue here is under VACA. See
34 U.S.C. § 20341.) But Congress presumably could have enacted a
corresponding Bivens-type cause of action for private litigants
when enacting VACA. Congress was likely aware of 42 U.S.C.
§ 1983 litigation involving sexual abuse in public schools when
enacting and reauthorizing VACA. See, e.g., Doe v. Taylor Indep.
Sch. Dist., 15 F.3d 443 (5th Cir. 1994); Stoneking v. Bradford
Area Sch. Dist., 882 F.2d 720 (3d Cir. 1989); Pesce v. J.
- 88 -
Sterling Morton High Sch., 830 F.2d 789, 790 (7th Cir. 1987).25
As the Individual Defendants point out, (see Defs.' Suppl. Br.
(Doc. 54) at 8), Congress chose to include a freestanding civil
damages remedy when first passing the Child Abuse Victims'
Rights Acts of 1986. See 18 U.S.C. § 2255. That damages statute,
18 U.S.C. § 2255, grants minor victims a cause of action for
certain sexual abuse, forced labor, transporting in minors, and
child pornography offenses. That Congress chose not to include a
damages remedy when passing VACA, four years later, weighs
against judicially creating an implied cause of action here.26
Further, the Individual Defendants persuasively argue that
"[b]oth Congress and the Executive Branch have been very active
However, the court also weighs the history of § 1983
litigation involving student sexual abuse in favor of extending
a Bivens remedy here and in resolving any legislative ambiguity.
Cf. Mynor Abdiel TUN-COS v. Perrotte, Civil Action No. 1:17-cv943 (AJT/TCB), 2018 WL 3616863, at *8 (E.D. Va. Apr. 5, 2018)
("Congress's silence in this context does not reliably reflect
any congressional intent to preclude a Bivens damages remedy,
particularly given the long standing judicial recognition of a
Bivens remedy for the types of Fourth and Fifth Amendment claims
asserted in this case."); see also-Pumphrey v. Coakley, CIVIL
ACTION NO. 5:15-cv-14430, 2018 WL 1359047, at *5 (S.D. W. Va.
Mar. 16, 2018) (assuming arguendo that the case presented a
Bivens expansion, "[t]hese claims of direct and specific
excessive force are frequently litigated and well-suited to
judicial consideration, even absent congressional action").
25
26
This court notes that at least two other courts have
found that 34 U.S.C. § 20341 created no cause of action. See
Adams v. United States, No. 07-809C, 2008 WL 4725452, at *2
(Fed. Cl. Ct. July 16, 2008); Graham v. Rawley, Civil Action No.
14-6743, 2016 WL 7477756, at *4 (D.N.J. Dec. 29, 2016).
- 89 -
in the area of [child] abuse in the military [specifically]."
(Defs.' Suppl. Br. (Doc. 54) at 8-9.) The Complaint supports
this argument. In the Complaint, Plaintiffs allege that Congress
mandated that the DoD establish the FAP "to prevent and protect
against child sexual abuse and other kinds of abuse of children
of military personnel .
." (Am. Compl. (Doc. 39)
37.A.ii.); see 10 U.S.C. § 1058 (mandating that the Secretary
of Defense prescribe the definition of "domestic violence" for
purposes of § 1058 and other necessary regulations); see also 32
C.F.R. § 61.1 (establishing policy and assigning
responsibilities for addressing child abuse through the FAP
pursuant to, in part, 10 U.S.C. § 1058(b)). Plaintiffs cite
numerous DoD regulations in alleging that Defendants had a duty
to protect Plaintiffs from sexual abuse and to prevent, report,
investigate, and treat it. (Am. Compl. (Doc. 39) $ 37.)
Congress's concern in this area is obvious and, while the
seriousness of child sex abuse cannot be overstated, this
court's special-factors inquiry at the stage of deciding whether
or not to extend a Bivens remedy is not into the efficacy of
Congress's regulations and the Individual Defendants' compliance
with them. Rather, the existence of the copious regulations as
evidence of Congress's intent is the pertinent fact. As with
"any inquiry respecting the . . . intent of Congress . .
- 90 -
[where] Congressional interest has been 'frequent and intense,'"
and Congress has chosen not to extend a damages remedy,
Congress's silence is relevant. Abbasi, 137 S. Ct. at 1862
(quoting Schweiker v. Chilicky, 487 U.S. 412, 425-26 (1988)).
In sum, Congress's active legislation in the specific area
of child abuse within the military, as well as the DoD's
creation of the FAP and promulgation of numerous regulations in
this context, are special factors counselling hesitation.
(ii) The DoD Context
The DoD context of this case is the most significant
special factor counselling hesitation, as "[t]he need for
special regulations in relation to military discipline, and the
consequent need and justification for a special and exclusive
system of military justice, is too obvious to require extensive
discussion." Chappell v. Wallace, 462 U.S. 296, 300 (1983). In
addition, "[e]xtending Bivens to this context would likely also
lead to increased litigation and subject the [DoD] to the
burdens of discovery and the litigation process." Jangjoo v.
Sieg, 319 F. Supp. 3d 207, 217 (D.D.C. 2018). Further, as
discussed, the Complaint references an abundance of DoD
regulations, and this case might require this court to analyze
military policies and practices, "a province almost always
reserved for review, enforcement and adjudication through the
- 91 -
Legislative or Executive branches." Meron, 2018 WL 3619538, at
*11. Finally, litigation involving the workings of the DOD might
require court intrusion into not just a co-equal branch of
government, but one responsible for our national security and
sensitive information. See Abbasi, 137 S. Ct. at 1861 (quoting
Dep't of Navy v. Egan, 484 U.S. 518, 530 (1988)) ("'[C]ourts
traditionally have been reluctant to intrude upon the authority
of the Executive in military and national security affairs'
unless 'Congress specifically has provided otherwise.'"). In
Abbasi, the Supreme Court found that Congress had not provided
otherwise in the context of the detention policies at issue, see
137 S. Ct. at 1861, and here, Congress has not provided
otherwise in the context of child sexual abuse occurring on a
military base at a DOD-operated school.
Relatedly, "[t]he Supreme Court has never created or even
favorably mentioned the possibility of a non-statutory right of
action for damages against military personnel, and it has twice
held that it would be inappropriate to create such a claim for
damages." Vance v. Rumsfeld, 701 F.3d 193, 199 (7th Cir. 2012)
(citing Chappell, 462 U.S. at 296; United States v. Stanley, 483
U.S. 669 (1987)). Defendant Sicinski, a colonel in the United
States Army, is a high-ranking official in the United States
military and was the Fort Bragg Garrison Commander during the
- 92 -
relevant time. His rank is "a far cry from [either the] FBI line
agents or prison guards" in Bivens and Carlson, respectively.
See Meron 2018 WL 3619538, at *11.
But this court also finds this case's military context
unique. The relevant alleged acts and omissions did occur on a
United States military base, yet for the most part involve
regulations and employees of the DoDEA, a civilian agency of the
DoD. To some extent, this case does not present the same
concerns generally associated with litigation involving our
military. This is not an incident-to-service case, see Feres v.
United States, 340 U.S. 135, 146 (1950), and does not involve
"enlisted military personnel [seeking] a Bivens-type remedy
against their superior officers," Chappell, 462 U.S. at 304.
Plaintiffs' allegations do not involve sensitive issues of
national security or the administration of a uniquely defenseorientated institution in the same manner as another case
involving the DoD might. See Doe v. Hagenbeck, 870 F.3d 36, 49
(2d Cir. 2017) (declining to permit female cadet's Bivens claim
against commanding officers at the United States Military
Academy because "West Point is part of the [Don and its] cadets
are service members"). This case involves young children
attending an elementary school operated by a civilian agency of
the DoD.
- 93 -
Further, Plaintiffs do not seek to "altern an entity's
policy." Abbasi, 137 S. Ct. at 1860. Their claims address
individual conduct, and they seek "compensation for a past
wrong, not prospective relief from considered agency action."
Linlor, 263 F. Supp. 3d at 621; see Bistrian, 912 F.3d at 90
(citing Abbasi, 137 S. Ct. at 1856-63). Plaintiffs do not
challenge the constitutionality or sufficiency of the DoD
policies, merely the execution of them. Unlike the detention
policy claims challenged in Abbasi, the claims here do not to
the same degree "call into question the formulation and
implementation of a general policy." 137 S. Ct. at 1860.
Nevertheless, this case presents several factors - most
notably legislative action and the DOD context - that cause this
court to hesitate before answering "whether the Judiciary is
well suited, absent congressional action or instruction, to
consider and weigh the costs and benefits of allowing" a Bivens
action to proceed. See Abbasi, 137 S. Ct. at 1858. On balance,
those special factors counselling hesitation are better
"committed to those who write the laws rather than those who
interpret them." Id. at 1857 (citations and internal quotation
marks omitted). Following the Supreme Court's most recent
exhortation, this court is unable to extend a Bivens remedy
here.
- 94 -
IV.
CONCLUSION
For the reasons set forth herein, IT IS HEREBY ORDERED that
the Motion to Dismiss Plaintiffs' Amended Complaint filed by
Defendant United States of America, (Doc. 40), is GRANTED IN
PART AND DENIED IN PART, in that:
1.
The United States' Motion to Dismiss, (Doc. 40), is
GRANTED as to Claims III and IV, and those claims are hereby
DISMISSED WITH PREJUDICE; and
2.
The United States' Motion to Dismiss, (Doc. 40), is
GRANTED IN PART AND DENIED IN PART as to Claims I and VI, in
that the United States' Motion is GRANTED as to allegations
preceding October 11, 2011, and those allegations in Claims I
and VI are hereby DISMISSED WITHOUT PREJUDICE, and DENIED as to
the Government's conduct beginning on October 11, 2011 and
continuing thereafter; and
3.
The United States' Motion to Dismiss, (Doc. 40), is
GRANTED IN PART AND DENIED IN PART as to Claim II, in that the
United States' Motion is GRANTED as to Danny, Timmy, and Wyatt,
and Claim II is hereby DISMISSED WITHOUT PREJUDICE as to those
Minor Plaintiffs, and DENIED as to Adam and Robby, as further
set forth herein; and
5.
The United States' Motion to Dismiss, (Doc. 40), is
GRANTED IN PART AND DENIED IN PART as to Claim V, in that the
- 95 -
United States' Motion is GRANTED as to all Plaintiffs and all
allegations that do not concern a failure to report, and Claim V
is hereby DISMISSED WITH PREJUDICE to that extent, and DENIED to
the extent that Claim V alleges negligence per se for the
Government's failure to report suspected child abuse on or after
October 11, 2011.
IT IS FURTHER ORDERED that the Individual Defendants'
Motion to Dismiss, (Doc. 42), is GRANTED, and Claims VII-X are
hereby DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Defendants' Motion for a Stay,
(Doc. 48), is DENIED as moot.
4hb-
This the n 7
day of March, 2019.
/A.) U/L6.471,t_ L •
United States District Ju
- 96 -
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