Doe v. United States, 1:17CV183

• Decision Date: 27 March 2019
• Docket Number: 1:17CV183
• Citation: 381 F.Supp.3d 573
• Court: U.S. District Court — Middle District of North Carolina
• Parties: 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. 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.

381 F.Supp.3d 573

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.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.

1:17CV183

United States District Court, M.D. North Carolina.

Signed March 27, 2019

Filed March 29, 2019

Robert Y. Lewis, Hudson, FL, Laura E. Conner, Tatum & Atkinson, PLLC, Raleigh, NC, for Plaintiffs.

Steven N. Baker, U.S. Attorney's Office, Greensboro, NC, for 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) ¶¶ 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 a federal statute, DoD regulations, and North Carolina common law. (E.g., id. ¶¶ 10, 13.)¹

A. Parties

Plaintiff Lynn Doe is the mother and Guardian ad Litem for minors "Robby" and "Timmy." (Id. ¶ 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. ¶ 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.)

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. ¶¶ 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. ¶¶ 46, 48), and that Defendant Marsh later "admitted that had the background check been completed Nevarez would not have been hired." (Id. ¶ 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 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. ¶¶ 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 then-Principal 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. ¶¶ 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. ¶¶ 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.) 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. ¶ 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. ¶¶ 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.)

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. ¶ 129.) On or around November 8, 2011, Defendants "removed Nevarez from the classroom," but did not remove him from the base. (See id. ¶ 121.)⁵

On January 6, 2012, Plaintiffs allege that Defendants received another report of child abuse by Nevarez, (Id. ¶ 143), 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...