381 F. Supp. 3d 573
M.D.N.C.2019Background
- Plaintiffs (mothers as guardians) allege Fort Bragg DoD elementary-school instructor Jose Nevarez sexually abused their children between 2010–2012; suit names the United States and four school/DoD officials.
- Plaintiffs assert FTCA and North Carolina tort claims (failure to protect, report, investigate, treat, negligent hiring/supervision, negligence per se, premises liability) and Bivens claims against individual defendants for Fifth Amendment substantive due process violations.
- Key factual pivot: a student ("Adam") disclosed inappropriate touching by Nevarez to the school counselor on October 11, 2011; plaintiffs allege defendants told Nevarez about that disclosure and continued assigning him to classrooms, and another disclosure occurred November 8, 2011 ("Wyatt").
- Government moved to dismiss under Rules 12(b)(1) and 12(b)(6), arguing the FTCA's intentional-tort exception bars claims arising out of assault/battery and that many asserted duties derive from DoD regulations and negligent supervision (Sheridan line).
- Individual defendants moved to dismiss Bivens claims; court ordered supplemental briefing on whether Abbasi counsels against extending Bivens to this context.
- Court: Government motion granted in part and denied in part (surviving claims limited to conduct on/after Oct. 11, 2011; negligence-per-se for failure to report survives as to post-Oct.11,2011 reporting failures; negligent-hiring/supervision and duties premised solely on DoD regs dismissed); individual defendants’ Bivens claims dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FTCA claims are barred by § 2680(h) intentional-tort exception / whether the Government owed independent duties under NC law | Government employees breached duties independent of Nevarez’s employment (reporting, investigating, treating) so claims do not "arise out of" assault/battery | Many allegations are negligent-hiring/supervision or merely failure to follow DoD regs and thus fall within Sheridan (intentional-tort exception); some federal duties have no private-person analogue | Court dismissed claims predicated on negligent hiring/supervision and duties that are only violations of DoD regs; denied dismissal for claims plausibly alleging independent duties and foreseeability based on Oct. 11, 2011 disclosure (survives as to conduct on/after that date) |
| Foreseeability / duty for Claims I (duty to protect/investigate/remediate) and VI (premises liability) | Adam’s October 11, 2011 disclosure and subsequent events made abuse foreseeable; failure to report/act after that date proximately caused later abuse | Government argues prior noncriminal conduct and isolated incidents are insufficient to establish foreseeability under NC law (citing Durden) | Court found Adam’s disclosure plausibly created foreseeability and denied dismissal as to Government conduct beginning Oct. 11, 2011; allegations predating Oct. 11, 2011 dismissed without prejudice |
| Voluntary-assumption (Good Samaritan) duty (Claim II) | Government voluntarily assumed duties (promises to investigate/report/treat) when counselor/principal assured Adam’s mother something would be done; thus a private-person duty exists | Government denies such an assumed-duty exists as to most children; contends regulatory duties don't create private-law duty | Court held plaintiffs plausibly alleged a voluntarily-assumed duty as to Adam (and Robby to limited extent) based on affirmative promises/actions; granted dismissal as to Wyatt, Danny, Timmy for lack of affirmative undertaking |
| Availability of Bivens remedy for Fifth Amendment substantive due process claims (Claims VII–X) | Plaintiffs seek damages for constitutional injury where state/Federal remedies are inadequate | Defendants argue Abbasi factors, separation-of-powers, existence of alternative remedies/regulatory schemes, and military/DoD context counsel against extending Bivens | Court declined to extend Bivens to this new context (military/DoD school child-abuse allegations); Bivens claims dismissed with prejudice |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading plausibility standard)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (plausibility standard for pleadings)
- Sheridan v. United States, 487 U.S. 392 (interpretation of FTCA intentional-tort exception)
- Sheridan v. United States, 969 F.2d 72 (4th Cir.) (Sheridan II) (failure-to-follow-regulations may be negligent supervision barred by § 2680(h))
- Durden v. United States, 736 F.3d 296 (4th Cir.) (foreseeability analysis under NC law in FTCA context)
- Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (implied damages remedy against federal officers)
- Carlson v. Green, 446 U.S. 14 (FTCA and Bivens as parallel/complimentary remedies)
- Davis v. Passman, 442 U.S. 228 (extension of Bivens-like remedy for Fifth Amendment equal protection claim)
- Chappell v. Wallace, 462 U.S. 296 (reluctance to create nonstatutory damages claims in military context)
- F.D.I.C. v. Meyer, 510 U.S. 471 (sovereign immunity and FTCA scope)