Mott et al v. United States

Filing 39

MEMORANDUM OPINION signed by Chief Judge Waverly D. Crenshaw, Jr on 10/17/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(ab)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

CANDACE MOTT, individually and
on behalf of her minor child E.J., and
LILLIAN ROUSSEAU, individually
and on behalf of her minor child M.C.,
Plaintiffs
v.
UNITED STATES OF AMERICA,
Defendant

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NO. 3:16-cv-02503
CHIEF JUDGE CRENSHAW

MEMORANDUM OPINION

Pending before the Court is the United States’ Motion to Dismiss (Doc. No. 15.) For the
reasons stated herein, the Motion to Dismiss will be granted.
BACKGROUND
Plaintiffs Mott and Rousseau brought this action, pursuant to the Federal Tort Claims Act
(specifically 42 U.S.C. § 1346), on behalf of their minor children, E.J. and M.C. Plaintiffs allege that
Staff Sergeant Jeremiah Austin, an active duty solider stationed at Fort Campbell, sexually assaulted
E.J. and M.C. on numerous occasions during 2013 and early 2014. Plaintiffs contend that the United
States was aware of prior alleged incidents of sexual assault committed by Austin in Georgia, and
that the United States breached its duty to report suspected child abuse to the proper authorities in
Tennessee, ultimately causing E.J. and M.C. to be sexually assaulted by Austin.
Plaintiffs have sued the United States for intentional and negligent infliction of emotional
distress, negligence, negligence per se, and failure to warn or report. (Doc. No. 1). The United States

has moved to dismiss Plaintiffs’ claims, pursuant to Fed. R. Civ. P. 12(b), for lack of jurisdiction and
for failure to state a claim for which relief may be granted. (Doc. No. 15).
MOTIONS TO DISMISS
For purposes of a motion to dismiss, the Court must take all of the factual allegations in the
complaint as true. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).1 To survive a motion to dismiss,
a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face. Id. A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged. Id. Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice. Id. When there are well-pleaded factual allegations, a court should
assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.
Id. at 1950. A legal conclusion couched as a factual allegation need not be accepted as true on a
motion to dismiss, nor are recitations of the elements of a cause of action sufficient. Fritz v. Charter
Township of Comstock, 592 F.3d 718, 722 (6th Cir. 2010).
FEDERAL TORT CLAIMS ACT
Sovereign immunity generally bars claims against the United States without its consent. Kohl
v. United States, 699 F.3d 935, 939 (6th Cir. 2012). Congress, through the Federal Tort Claims Act

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Defendant has attached“supporting materials”to its Memorandum. Documents
that a defendant attaches to a motion to dismiss are considered part of the pleadings only if they
are referred to in the plaintiff’s complaint and are central to her claim. Okolo v. Metropolitan
Govt. of Nashville and Davidson County, 892 F.Supp.2d 931, 946, n. 5 (M.D. Tenn. 2012).
Here, the documents attached to Defendant’s Memorandum are referenced and relied upon in
Plaintiffs’ Complaint. Plaintiffs have attached to their Response a “Memorandum Opinion for
the General Counsel United States Department of Veterans Affairs.” This document was not
mentioned or referred to in the Complaint, and the Court cannot consider it.
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(“FTCA”), waived this governmental immunity for claims brought for injury or loss of property
caused by the negligent or wrongful act or omission of any employee of the United States while
acting within the scope of his 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. 42 U.S.C. § 1346(b)(1); Kohl, 699 F.3d at 939.
Defendant first argues that the court has no subject matter jurisdiction over this action
because any wrongful actions by Austin were not taken within the scope of his employment as
required by the FTCA. Plaintiffs have clarified, however, that their claims do not arise from Austin’s
actions;2 rather, they arise from the actions or inactions of Defendant after learning of the allegations
against Austin and the potential harm to children exposed to Austin. Plaintiffs assert that Defendant
owed a duty to Plaintiffs, independent of Austin’s employment. With this understanding of the
nature of Plaintiffs’ claims, the scope of employment issue is moot.
Defendant also argues that the court lacks subject-matter jurisdiction because of two
exceptions to the FTCA. The FTCA excepts certain claims from its waiver of sovereign immunity.
Cline v. United States, 13 F.Supp.3d 868, 872 (M.D. Tenn. 2014). If a claim falls within an
exception, then federal courts lack subject-matter jurisdiction. Id.; Kohl, 699 F.3d at 940.
DISCRETIONARY FUNCTION EXCEPTION
One exception to the FTCA is any claim based upon the exercise or performance or the
failure to exercise or perform a discretionary function or duty on the part of a federal agency or
employee of the government, whether or not the discretion involved be abused. 42 U.S.C. § 2680(a).

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“The Defendant’s reliance on Shearer is misplaced because its argument assumes
that Plaintiffs filed this complaint for the sexual assaults that were committed against E.J. and
M.C. This is incorrect.” (Doc. No. 26).
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Conduct cannot be discretionary unless it involves an element of judgment or choice. Berkovitz by
Berkovitz v. United States, 486 U.S. 531, 536 (1988). The discretionary function exception will not
apply if a federal statute, regulation or policy specifically prescribes a course of action for an
employee to follow because the employee has no rightful option but to adhere to the directive. Id.
This exception protects only governmental actions and decisions that involve an element of
judgment or choice and are based upon public policy considerations. Id. at 539; A.O. Smith Corp.
v. United States, 774 F.3d 359, 364-65 (6th Cir. 2014).
Defendant argues that its decisions to take action or not take action regarding these abuse
allegations involved judgments and choices and that the statutes themselves explicitly require
assessment and discretion. For example, the federal reporting statute provides that any person who
learns facts that “give reason to suspect that a child has suffered an incident of child abuse” shall
report such abuse. 42 U.S.C. § 20341.What the United States learned in this case were allegations.
There is discretion and judgment involved in deciding whether the allegations give reason to suspect
that a child has been abused. Similarly, the state statute requires reporting “if the harm is of such a
nature as to reasonably indicate that it has been caused by brutality, abuse or neglect or that, on the
basis of available information, reasonably appears to have been caused by brutality, abuse or
neglect.” Tenn. Code Ann. § 37-1-403. These decisions also involve the exercise of judgment and
discretion and involve public policy considerations.
This is not a case where the statute mandates the procedure for deciding whether to report
allegations or prescribes a specific course of action to make that determination. The Court finds that
the discretionary exception applies in this instance. Therefore, Plaintiffs’ FTCA claims are excepted

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from Defendant’s waiver of sovereign immunity and the Court has no subject matter jurisdiction
over them.
Because Plaintiffs’ claims all fall under the FTCA, and because the Court has no subject
matter jurisdiction to hear Plaintiffs’ FTCA claims, this action must be dismissed.
CONCLUSION
For all these reasons, Defendant’s Motion to Dismiss (Doc. No. 15) will be granted, and this
action will be dismissed.

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WAVERLY D. CRENSHAW, JR.
CHIEF UNITED STATES DISTRICT JUDGE

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