Cline v. United States

Filing 76

MEMORANDUM OPINION OF THE COURT. Signed by District Judge Aleta A. Trauger on 5/10/16. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
KIMBERLY CLINE, individually and
on behalf of her minor child, E.C.,

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Plaintiffs,
v.

UNITED STATES,
Defendant.

Civil No. 3:13-cv-776
Judge Aleta A. Trauger

MEMORANDUM
The defendant, the United States, has filed a Motion for Summary Judgment (Docket No.
55), to which the plaintiff, Kimberly Cline, has filed a Response (Docket No. 61), and the
defendant has filed a Reply (Docket No. 64). Both parties have also filed additional reply
briefing. (Docket Nos. 70, 73.) For the following reasons, the defendant’s Motion for Summary
Judgment will be denied.
FACTS1
This case stems from the tragic victimization of the plaintiff’s minor child, EC, by her
adoptive father, Joshua Matthew Cline (“JMC”). The plaintiff, Kimberly Cline (“KC”), proceeds
individually and on behalf of EC, who was born in 2001. KC met JMC through the internet in
October of 2006 and, in May of the following year, they were married. At the time, JMC was an
active duty soldier with the United States Army and, shortly after the marriage, KC moved with

1

Unless otherwise noted, the facts recounted in this section are drawn primarily from the
defendant’s Statement of Undisputed Facts (Docket No. 58) and the plaintiff’s response thereto
(Docket No. 61-1). Where there is a genuine dispute of fact, the court will construe the fact in
the light most favorable to the plaintiff as the non-moving party.
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her daughter to Clarksville, Tennessee to live with him. (Docket No. 57-1 (Aff. K. Cline) ¶ 12.)
In October of 2007, JMC was deployed to Iraq, where he remained until March 1, 2008, when he
received mid-tour leave and returned to Tennessee. (Id. ¶¶ 16, 18.) While at home, and without
the knowledge of KC, JMC forcibly raped and sodomized EC, who was then six years old. JMC
produced photographs and video of the abuse and stored the material on his computer, which he
took with him when he returned to his duties in Iraq on March 19, 2008. (See id. ¶ 21.)
In September of 2008, the Criminal Investigative Division (“CID”) at Camp Taji, Iraq –
where JMC was stationed – received information that JMC had solicited access to child
pornography websites on the internet and had purchased a membership to one site for $490. On
September 29, 2008, the CID at Camp Taji executed a search and seizure authorization of JMC’s
living area, interviewed JMC, and seized his media storage devices, including the computer
containing the pornographic photographs and video that he had produced of EC in March of
2008. During the interview, JMC admitted that he possessed child pornography with a preferred
age range of “between 7 and 10 years old,” but he denied ever sexually assaulting EC. (Docket
No. 57-4 (Sworn Statement J. Cline).)
On October 3, 2008 – several days after the interview and seizure of his devices – JMC
called KC to inform her that he was under investigation “for something found on his computer,”
which he characterized as “not a big deal” and the result of “some virus.” (Docket No. 61-1
¶¶ 9, 10, 12 (quoting Docket No. 57-1 (Aff. K. Cline) ¶¶ 25, 26).) JMC told KC that he had
spoken to an attorney, who informed him that KC had spousal privilege and should not talk to
anyone about the investigation. A week later, KC received a call from the CID at Fort Campbell,
Kentucky regarding the investigation into JMC. During the call, and based on a discussion she
had with JMC’s attorney, KC invoked spousal privilege and refused to speak with investigators,

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who did not inform her of the basis for their investigation into JMC.
On October 15, 2008, KC received a second call from the CID at Fort Campbell,
informing her that she must go to Army Family Services at Fort Campbell or she “would be in
trouble.” (Docket No. 57-1 (Aff. K. Cline) ¶ 32.) KC traveled to Fort Campbell the next day –
October 16, 2008 – and met with personnel from Army Family Services and the CID. The
parties offer differing accounts of the discussion that took place during this meeting. KC
contends that, during the meeting, Army personnel reviewed the CID file on its investigation into
JMC and suggested that KC limit JMC’s time with EC thereafter. (Id. ¶ 35.) KC further recalls
that, when she asked during the meeting if there was any reason that she should limit JMC’s time
with EC, Army personnel reassured her “that the investigation had nothing to do with [EC] and
not to worry.” (Id. ¶ 36.) KC maintains that, during this meeting, she was not informed of the
basis for the investigation into JMC or allowed to examine anything in the CID file on the
investigation. The defendant, on the other hand, claims that, during the interview, KC insisted
that EC had never been “touched” by JMC and continued to refuse to cooperate with
investigators (Docket No. 56, p. 4), but this account is based on inadmissible hearsay evidence,2
and the court must, therefore, discount it.
The parties appear to agree that this conversation did not prevent EC from being abused
by her adoptive father again. On November 14, 2008, JMC returned home from Iraq, and KC
limited his time with EC over the following weeks. (Docket No. 57-1 (Aff. K. Cline) ¶ 40.) On
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The defendant’s account of this meeting is supported solely by a “Summary of
Investigative Activity,” which purports to summarize the actions taken during the CID’s
investigation of JMC. (Docket No. 57-5.) This summary is comprised entirely of out-of-court
statements being offered for the truth of the matter asserted and, despite objections from the
plaintiff, the defendant has introduced no evidence demonstrating that it, or its contents, fall
within any exception to the rule against hearsay. The investigative summary is, therefore,
inadmissible hearsay and will not be considered by the court.
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December 6, 2008, however, EC was left alone with JMC while KC was in the hospital for the
birth of her and JMC’s son. While EC was alone with JMC, he again raped and sodomized her.
On January 13, 2009, a CID agent conducted a forensic examination of the media devices
that had been seized from JMC in September of 2008, allegedly revealing for the first time the
video of JMC abusing EC in March of 2008. At this point, the CID only suspected that the child
in the video was EC, a suspicion that was not confirmed until later (at some unspecified time).
It appears that the discovery of this video on JMC’s computer prompted the Army to
finally contact the Tennessee Department of Children’s Services (“DCS”) and, on January 21,
2009, DCS contacted KC while she was at work to instruct her to return to her home. When KC
returned home, she discovered that federal agents were searching her residence. KC was
informed by Agent Jonathan Hendrix that the search was based on JMC’s possession of child
pornography and that a suspected image of EC was depicted in child pornography found on
JMC’s computer. KC was also told that JMC had been taken into custody. KC maintains that
she was “devastated” by the news regarding EC and asked “why no one had told [her] anything
about it earlier,” but she was given no further information about the investigation or the
possibility that her daughter had been abused. (Docket No. 61-1 ¶ 41 (quoting Docket No. 57-1
(Aff. K. Cline) ¶¶ 48–50).) KC attempted to contact the attorney with whom she had spoken
when she first learned of the investigation into JMC in October of 2008, but the attorney said that
she could do nothing for her. KC also questioned a DCS official, Malika Holmes, who
interviewed her on the day of the search. Ms. Holmes told KC that she “did not know what [law
enforcement had] found or if it was really [EC] or not in the picture they found,” and she could
not provide KC with any further information about the investigation or the possible abuse of her
daughter. (Docket No. 57-1 (Aff. K. Cline) ¶ 51).) The day after the search, KC even

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questioned JMC’s court-appointed attorney, who interviewed her but told her that he could not
reveal any details about the case against JMC. (Id. ¶ 56.)
On January 23, 2009, DCS asked KC to take EC to Nashville OurKids – a group that
works with abused, abandoned, and neglected children – for a physical examination and
interview by OurKids staff. KC communicated everything she knew about the alleged abuse to
the personnel at OurKids and, after her daughter had been examined, they informed her that
“they found no physical damage and stated that [EC] did not say she had been abused at all.”
(Id. ¶ 59.) Immediately after this examination, KC took EC to DCS, where KC was questioned
by Detective Ginger Fleisher of the Clarksville Police Department and, later, arrested for child
abuse and child endangerment. While KC was being booked into jail, Detective Fleisher told her
that JMC “had been raping [EC] constantly [and] publishing videos and photos of her on the
internet.” (Docket No. 61-1 ¶ 49 (quoting Docket No. 57-1 (Aff. K. Cline) ¶¶ 62, 64–65).) KC
remembers that, after receiving this news, she “collapsed on the floor” and was upset that “no
one had warned or informed [her] early enough to protect [her] daughter.” (Id.) Nothing in the
record suggests, however, that Detective Fleischer provided KC with any additional information
regarding JMC’s abuse of her daughter, including the basis for Detective Fleischer’s own
purported knowledge that JMC had been “constantly” abusing EC. All charges against KC were
eventually dropped in May of 2009, but, for a portion of the intervening time period, KC was
denied access to EC and her infant son. (Docket No. 57-1 (Aff. K. Cline) ¶¶ 66–70.)
In the year following KC’s arrest, EC was physically examined once more for signs of
abuse, was interviewed twice more, and was treated by Dr. Janie Berryman, a trained
psychologist. (Id. ¶ 68; Docket No. 61-2 (Decl. Dr. Berryman).) Nothing in the record indicates
that any medical professional ever found signs that EC had been abused during a physical

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examination or that EC ever revealed (to anyone, medical professional or otherwise) that she had
been abused by JMC at any point in the past. Furthermore, there is no evidence in the record
suggesting (1) that JMC ever revealed his abuse of EC in December of 2008 to anyone, including
the government, or (2) that he produced any photographs or videos during the December 2008
abuse that would serve as independent evidence of the fact that the abuse occurred. It appears
from the record before the court, therefore, that, throughout 2009 and early 2010, no one other
than JMC and EC had actual knowledge of the December 2008 abuse (no matter how suspicious
they may have been) and that no independent proof of this abuse existed.
Finally, on March 10, 2010, EC disclosed to KC that JMC had, in fact, abused her in the
past and, specifically, that he had abused her in December of 2008, while KC was hospitalized
during the birth of her younger son.3 After this revelation, and realizing that her daughter had
been abused after the government began its investigation into JMC in September, KC began to
investigate the government’s potential involvement in allowing the December 2008 abuse to
occur. (Docket No. 57-1 (Aff. K. Cline) ¶ 86.) As a result of her efforts, KC alleges that she
discovered that, (1) as early as September of 2008, and before JMC returned to Tennessee to
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The Motion hinges on the defendant’s argument that KC’s claims are time-barred
because she “was aware, or, at least, through the exercise of reasonable diligence, should have
been aware” of the injury to her and EC long before March of 2010. (Docket No. 56, pp. 15–16.)
The defendant argues that KC was on notice of the possibility that JMC had abused EC as early
as October and November of 2008, when KC repeatedly blocked the CID’s efforts to schedule a
forensic interview of EC by professionals at a child advocacy center. (See id.; Docket No. 61-1
¶¶ 17–20.) The court will not, however, consider this argument or the evidence that supports it.
First, this argument is supported solely by the “Summary of Investigative Activity,” which, as
discussed supra, is inadmissible hearsay and will not be considered by the court. Second, KC’s
claims arise not out of JMC’s general abuse of EC throughout 2008, but specifically from JMC’s
abuse of EC in December of 2008, after the government was already aware of his interest in
child pornography. Evidence of interactions between the CID and KC in the months before that
abuse is, therefore, only marginally relevant to the determination of when KC was aware, or
should have been aware, of the December 2008 abuse.
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abuse EC further, the Army had video evidence of the March 2008 assault of EC, and (2) the
Army did not notify appropriate federal agencies, who were already surveilling KC, of JMC’s
November 2008 return from Iraq. (Id. ¶¶ 86–93.)
On February 22, 2012, almost two years after EC first disclosed her abuse at the hands of
JMC, KC filed administrative claims for herself and for EC with the Department of the Army. In
the claim, she alleges that the Army “intentionally and negligently allowed [JMC] to rape his
step-daughter [EC] while the [CID] had knowledge that [JMC] possessed and produced
pornographic images of [EC].” (Docket No. 57-7.) KC further alleged that the CID and the
Army “intentionally and negligently failed to warn [KC], [EC’s] mother, of the danger and
likelihood of the abuse if [JMC] was left alone with [EC].” (Id.) The Department of the Army
sent a letter to KC’s attorneys acknowledging its receipt of KC’s administrative claim, but the
record contains no information regarding the ultimate disposition of the claim. (See id.)
PROCEDURAL HISTORY
KC filed this action on August 5, 2013. (Docket No. 1.) The operative complaint (the
“Complaint”) alleges five claims under the Federal Tort Claims Act, 28 U.S.C. § 1346 et seq.
(the “FTCA”): intentional infliction of emotional distress, negligent infliction of emotional
distress, negligence in the standard and duty of care, negligence per se, and failure to warn or
report. (Docket No. 33.) Specifically, the Complaint alleges that the defendant had, and
breached, “an absolute duty to contact the Tennessee DCS” under both Tennessee and federal
law. (Id. ¶ 77 (citing Tenn. Code Ann. §§ 37-1-403, 37-1-605 (requiring law enforcement to
report suspected physical or sexual abuse of a child); 42 U.S.C. § 13031(a) (requiring that law
enforcement officers working on federal land report suspected child abuse upon “learn[ing] of
facts that give reason to suspect that a child has suffered an incident of child abuse”)).) The

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defendant answered the Complaint on June 3, 2015. (Docket No. 48.)
On January 1, 2016, five months before the court-ordered deadline for dispositive
motions, the defendant filed a Motion for Summary Judgment, arguing that KC’s claims are
time-barred by the FTCA’s two-year statute of limitations. (Docket No. 55.) According to the
defendant, KC knew or should have known of the existence and the cause of the injuries to her
and her daughter no later than January 23, 2009, three years prior to her filing of an
administrative claim with the Department of the Army. (Id.) The motion is accompanied by a
Memorandum in support, a Statement of Undisputed Facts, and the Declaration of Major Nolan
Koon, which attaches various exhibits, including an affidavit by KC, multiple investigation
reports, and the administrative claim filed by KC with the Department of the Army. (Docket
Nos. 56–58.) The defendant did not raise any additional grounds for summary judgment on
KC’s claims.
KC filed a Response in opposition to the defendant’s motion on January 26, 2016,
accompanied by a Response to the defendant’s Statement of Undisputed Facts and the
declaration of Dr. Janie Berryman, EC’s treating psychologist. (Docket No. 61.) In the
Response, KC argues that her cause of action did not accrue in January of 2009 but, rather, on
March 10, 2010, when EC first revealed to KC that she had been abused by JMC in December of
2008 (after the CID investigation was already well underway). (Id. at p. 2.) KC’s claims, which
were filed less than two years after this revelation, were, therefore, timely. (Id.)4
The defendant filed a Reply on February 19, 2016, arguing primarily that KC’s Response
4

KC also contends that, should the court find that her claims accrued in January of 2009,
she is entitled to equitable tolling of the two-year limitations period because EC did not disclose
the December 2008 abuse until March of 2010. (Docket No. 61, pp. 17–19.) The court need not
reach the question of equitable tolling, however, because – as discussed infra – KC’s claims did
not accrue until March of 2010.
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to the Statement of Undisputed Facts is inadequate and that all of the defendant’s purportedly
undisputed facts should, therefore, be deemed admitted pursuant to Federal Rule of Civil
Procedure 56(e). (Docket No. 64.) KC and the defendant both filed additional reply briefing –
with leave of the court – on March 11 and March 21, 2016, respectively. (Docket Nos. 70, 73.)
KC requested leave to file an additional sur-reply on March 24, 2016, but the court denied the
request. (Docket Nos. 74, 75.)
SUMMARY JUDGMENT STANDARD
Federal Rule of Civil Procedure 56 requires the court to grant a motion for summary
judgment if “the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). If a moving defendant
shows that there is no genuine issue of material fact as to at least one essential element of the
plaintiff’s claim, the burden shifts to the plaintiff to provide evidence beyond the pleadings,
“set[ting] forth specific facts showing that there is a genuine issue for trial.” Moldowan v. City
of Warren, 578 F.3d 351, 374 (6th Cir. 2009); see also Celotex Corp. v. Catrett, 477 U.S. 317,
322–23 (1986). “In evaluating the evidence, the court must draw all inferences in the light most
favorable to the non-moving party.” Moldowan, 578 F.3d at 374 (citing Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
At this stage, “‘the judge’s function is not . . . to weigh the evidence and determine the
truth of the matter, but to determine whether there is a genuine issue for trial.’” Id. (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). But “[t]he mere existence of a
scintilla of evidence in support of the [non-moving party’s] position will be insufficient,” and the
party’s proof must be more than “merely colorable.” Anderson, 477 U.S. at 252. An issue of
fact is “genuine” only if a reasonable jury could find for the non-moving party. Moldowan,

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578 F.3d at 374 (citing Anderson, 477 U.S. at 252).
ANALYSIS
The FTCA provides a waiver of sovereign immunity that allows the United States to be
sued “in the same manner and to the same extent as a private individual under like
circumstances” for a tort claim arising from the acts of federal employees acting within the scope
of their employment. 28 U.S.C. § 2674; see Young v. United States, 71 F.3d 1238, 1241 (6th Cir.
1995). The FTCA bars a tort claim against the United States unless first presented to the
appropriate federal agency “within two years after such claim accrues.” 28 U.S.C. § 2401(b).
The purpose of this limitations period is to “require the reasonably diligent presentation of tort
claims against the Government.” United States v. Kubrick, 444 U.S. 111, 124 (1979).
The Supreme Court has ruled that a tort claim accrues under § 2401(b) of the FTCA
when the plaintiff “knows both the existence and the cause of his injury.” Kubrick, 444 U.S. at
113.5 Accrual of the claim does not “await awareness by the plaintiff that his injury was
negligently inflicted” but, rather, occurs when a plaintiff, “armed with the facts about the harm
done to him, can protect himself by seeking advice in the medical and legal community.” Hertz
v. United States, 560 F.3d 616, 618 (6th Cir. 2009) (quoting Kubrick, 444 U.S. at 123). The
FTCA’s limitations period thus does not begin to run until the plaintiff has discovered or, in the
exercise of reasonable diligence, should have discovered the critical facts regarding his injury
and its cause. Id. (citing Kronisch v. United States, 150 F.3d 112, 121 (2d Cir. 1998)); Ruff v.
Runyon, 258 F.3d 498, 500–01 (6th Cir. 2001); Coffie v. United States, 43 F. App’x 808, 811

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Generally, a plaintiff’s claim under the FTCA “accrues at the time of injury,” but, in
cases involving claims of negligence, courts have consistently applied the Kubrick standard, by
which the claim does not accrue until the plaintiff “has discovered both his injury and its cause.”
444 U.S. at 120; accord Chomic v. United States, 377 F.3d 607, 610–11 (6th Cir. 2004).
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(6th Cir. 2002). The determination as to when a plaintiff has such knowledge is, as the Sixth
Circuit has oft noted, “necessarily fact-intensive,” and courts generally consider when a
“reasonable person” would have been aware of information sufficient to trigger accrual of the
claim. Amburgey v. United States, 733 F.3d 633, 637–39 (6th Cir. 2013) (quoting Hertz,
560 F.3d at 619).
KC’s claims against the government are based on the government’s alleged failure – after
the CID’s interview of JMC in which he admitted to possessing child pornography and seizure of
the computer containing the pornographic video of EC – to take action against JMC or to contact
law enforcement in Tennessee, DCS, or any other authority. (Docket No. 33.) As a result of this
failure, KC maintains that JMC was allowed to return to Tennessee in November of 2008 and
further abuse EC in December of 2008. (Id.) The critical question with respect to the accrual of
these claims, therefore, is whether KC knew or should have discovered the critical facts
regarding the December 2008 abuse before March 10, 2010, when her daughter first disclosed it
to her.6
KC does not dispute that, by January 23, 2009, she was aware of the possibility that JMC
had abused EC in the past. Specifically, KC acknowledges that (1) Agent Hendrix told her on
January 21, 2009 that a suspected image of EC was depicted in the child pornography recovered
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Despite the fact that KC has brought claims against the government on her own behalf
and on behalf of EC, the court considers only KC’s knowledge for purposes of determining when
the claims accrued. First, the government has not argued that accrual of the claims in this case
could in any way be triggered by EC’s knowledge of her own abuse in December of 2008.
Second, for purposes of the FTCA’s statute of limitations, the parent’s knowledge of the minor’s
injuries is generally imputed to the minor, see MacMillan v. United States, 46 F.3d 377, 381 (5th
Cir. 1995), but the court is aware of no precedent holding that a minor child’s knowledge should
be imputed to the parent. In fact, such a holding would seem manifestly unfair, as a minor child
may not institute proceedings on her own behalf to protect her legal rights but, rather, must rely
on her parents (and their knowledge) to do it for her.
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on JMC’s digital media, and (2) Detective Fleischer told her on January 23, 2009 that JMC “had
been raping [EC] constantly [and] publishing videos and photos of her on the internet.” (Docket
No. 61-1 ¶¶ 40, 48.)
While these statements certainly placed KC on notice of the possibility of JMC’s having
abused EC in the past, they are not sufficient to have armed KC, or a reasonable person in her
place, with enough information about the specific harm done to her and her daughter to trigger
the beginning of the FTCA’s two-year limitations period. First, KC was told only that the
authorities “suspected” that EC’s image was found in the pornographic material on JMC’s
computer. Although EC’s presence in the pornographic material was later confirmed, the
government has introduced no evidence identifying when that confirmation took place or,
consequently, when EC could have been made aware of that confirmation. Second, Detective
Fleischer may have told KC that JMC had been abusing EC, but nothing in the record suggests
that she provided KC with any additional information regarding the abuse, such as when it had
occurred or why Detective Fleischer believed the abuse to have been “constant[].” These vague
statements do nothing more than inform KC of investigators’ unverified suspicions of abuse at
some unspecified point in the past. They do not provide KC with sufficient “critical facts”
regarding the abuse of EC in December of 2008 – after the defendant had reason to know of
JMC’s predilection for child pornography – to allow KC to procure informed legal advice with
respect to the claims at issue in this action and, thereby, effectively protect her legal rights. See
Amburgey, 733 F.3d at 637.7

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It should go without saying that it would be prohibitively difficult for KC, or any lawyer
with whom she spoke, to effectively pursue a claim that is entirely premised on EC having been
abused after September of 2008 without evidence that any abuse took place during that time
period and in contradiction to EC’s repeated denials that nothing inappropriate had occurred.
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Furthermore, even if the court were to assume that these two statements would have
caused a reasonable person to suspect that EC was abused after the CID’s investigation had
already begun, the government has introduced no evidence demonstrating that any amount of
reasonable diligence on KC’s part, prior to March of 2010, could have confirmed that suspicion.
See Hertz, 560 F.3d at 618 (noting that the touchstone of FTCA claim accrual analysis is “when
a plaintiff possesses enough information with respect to her injury that, ‘[h]ad [she] sought out
independent legal and [expert] advice at that point, [she] should have been able to determine in
the two-year period whether to file an administrative claim” (quoting McIntyre v. United States,
367 F.3d 38, 53 (1st Cir. 2004))). The government has introduced nothing demonstrating that it,
or anyone else, had any evidence suggesting that JMC had abused EC at any point after March of
2008. Moreover, the government has failed to rebut any of KC’s evidence that (1) the physical
examination of EC at OurKids in Nashville revealed no signs of abuse, and (2) prior to March
10, 2010, EC repeatedly denied – to both medical professionals and to KC herself – that she had
ever been abused by JMC. The government has also failed to produce any evidence suggesting
that JMC himself ever disclosed the December 2008 abuse to anyone, let alone to KC.
With no independent evidence of the December 2008 abuse, and with no indication that
JMC disclosed that abuse to anyone, the only evidence of the abuse is EC’s own disclosure to her
mother on March 10, 2010. That is the first day that KC was armed with sufficient, critical
information regarding the wrong done to both her and her daughter, not just by JMC, but also –
potentially – by a government that may have been able to protect EC in December of 2008, but
failed to do so. KC’s claims, therefore, accrued on March 10, 2010, and they were timely
presented to the Department of Army in compliance with the two-year limitations period of the
FTCA. Accordingly, the defendant’s motion will be denied, and KC’s claims will be allowed to

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proceed.
CONCLUSION
For the reasons discussed herein, the defendant’s Motion for Summary Judgment will be
denied.
An appropriate order will enter.

___________________________
ALETA A. TRAUGER
United States District Judge

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