Durden v. United States

• Decision Date: 20 November 2013
• Docket Number: No. 12–2212.,12–2212.
• Citation: 736 F.3d 296
• Parties: Maria Nicole DURDEN, Plaintiff–Appellant, v. UNITED STATES of America, Defendant–Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

736 F.3d 296

Maria Nicole DURDEN, Plaintiff–Appellant,

v.UNITED STATES of America, Defendant–Appellee.

No. 12–2212.

United States Court of Appeals, Fourth Circuit.

Argued: Sept. 19, 2013.

Decided: Nov. 20, 2013.

ARGUED: Nathan Harrill, Wake Forest University School of Law, Winston–Salem, North Carolina, for Appellant. Joshua Bryan Royster, Office Of The United States Attorney, Raleigh, North Carolina, for Appellee. ON BRIEF:Joseph L. Anderson, Anderson Pangia & Associates, PLLC, Winston–Salem, North Carolina; Douglas P. Desjardins, Transportation Injury Law Group, Washington, D.C., for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May–Parker, Assistant United States Attorney, Office of the United States Attorney, Raleigh, North Carolina, for Appellee.

Before NIEMEYER, GREGORY, and FLOYD, Circuit Judges.

Affirmed by published opinion. Judge FLOYD wrote the opinion, in which Judge NIEMEYER and Judge GREGORY concurred.

FLOYD, Circuit Judge:

On December 13, 2009, U.S. Army Specialist Aaron Pernell unlawfully entered the home of Maria Durden while inebriated and raped Durden in front of her children. Durden subsequently sued the government pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b), alleging that the Army was negligent and therefore is liable for the sexual assault against her. The government moved to dismiss Durden's complaint for lack of subject matter jurisdiction and, alternatively, for failure to state a claim upon which relief can be granted. The district court granted the government's motion with respect to subject matter jurisdiction, and Durden appealed. For the reasons set forth below, we affirm.

I.

A.

Pernell joined the Army at age eighteen and was deployed to Iraq after he completed his initial training in Georgia and a two-day stay at Fort Bragg, North Carolina. Upon returning to Fort Bragg subsequent to his deployment, Pernell struggled emotionally and began using drugs and abusing alcohol. In March and August of 2009, Pernell told his staff sergeant that he desired to kill himself and eleven current and former members of his unit. After each instance, the sergeant discouraged Pernell from seeking mental-health treatment and cautioned Pernell that receiving such treatment could blemish Pernell's military record. In September 2009, Pernell confided in a fellow soldier that he was unable to sleep due to his drug and alcohol use; the soldier also advised Pernell not to seek mental-health treatment because it could “mess up [Pernell's] career.”

On September 10, 2009, Pernell burglarized a home in Fayetteville, North Carolina (which is adjacent to Fort Bragg) and assaulted the home's occupants with a pellet gun. Civilian law enforcement arrested Pernell and charged him with burglary and assault. Pernell was then detained at a civilian jail from September 11 to October 22, 2009, at which time his parents posted bail on his behalf and his platoon leader retrieved him and returned him to Fort Bragg. During the transport back to Fort Bragg, Pernell again expressed a desire to kill himself and eleven members of his unit.

Immediately upon Pernell's return to Fort Bragg, the Army began the process of administratively separating him. According to Durden, Pernell's commanding officer issued orders on October 22, 2009, that Pernell was to have a noncommissioned officer escort at all times—both off and on Fort Bragg—and was to be checked on hourly to ensure that he remained in his barracks. Durden alleges that the orders were given to “prevent harm to innocent base residents.” Durden also claims that these orders were not enforced. Specifically, Durden claims that Pernell was permitted to leave his barracks at night to use drugs and consume alcohol and, further, that Pernell's superior officers knew that Pernell violated the orders but did not act to ensure that the orders were followed.

The government paints a somewhat different picture of the restrictions placed on Pernell following his release from civilian jail and the reasons for the restrictions. According to the government, Pernell was not required to have an escort while on Fort Bragg, was not confined to his barracks, and was not required to be checked on hourly; rather, Pernell was required to have an escort only when he left Fort Bragg, which he could not do without first obtaining permission. Through an affidavit, the government asserts that revoking a soldier's leave-and-pass privilege off Fort Bragg is common while the soldier undergoes the process of being administratively separated, or subsequent to being in civilian confinement, “to ensure that the soldier [is] available for administrative proceedings and [does] not go absent without leave.” The government also notes that Pernell received event-oriented counseling on October 22, 2009, at which time Pernell's commanding officer first learned of Pernell's desires to harm himself and others. The government claims that Pernell recanted these desires at that time; however, out of an abundance of caution, the Army ordered that Pernell be checked on every two hours during the evening while in his barracks to ensure that he did not harm himself. Pernell then underwent a scheduled mental-health evaluation on October 30, 2009, after which it was determined that, inter alia, Pernell exhibited a low potential for self-harm and harm to others. As a result of this assessment, Pernell's commanding officer lifted the bihourly evening checks.

Pernell raped Durden on December 13, 2009, at Durden's residence on Fort Bragg. In January 2010, Pernell became a suspect in Durden's rape and consented to giving a DNA sample that was used to identify him as Durden's assailant. Pernell was also identified at that time as being involved in burglaries and sexual assaults that occurred in 2008 and 2009 in Fayetteville. Pernell subsequently requested mental-health treatment, and it was then determined that Pernell posed a medium risk of harm to himself and others. Following this evaluation, the Army—for the first time, according to the government—placed Pernell on barracks restriction and ordered that he be monitored at all times.

On December 8, 2010, a general court-martial convicted Pernell of raping Durden. As a result, Pernell was sentenced to fifty years' imprisonment, had his military rank reduced, and was dishonorably discharged from the Army. On August 11, 2011, Durden sued the government. Durden alleged that the Army was aware that Pernell posed a safety risk to others, had a duty to protect her from Pernell, and breached that duty by failing to execute the October 22, 2009 orders that, according to Durden, required that Pernell be escorted at all times while on Fort Bragg and be checked on hourly when in his barracks.

The government moved to dismiss Durden's complaint for lack of subject matter jurisdiction and, alternatively, for failure to state a claim. Specifically, the government asserted that the Army did not breach any duty owed to Durden under North Carolina law and that Durden's complaint is barred by the FTCA's intentional-tort exception, 28 U.S.C. § 2680(h). The district court granted the government's motion, and Durden appealed. This Court has jurisdiction over Durden's appeal pursuant to 28 U.S.C. § 1291.

B.

This Court reviews de novo a district court's decision on a motion to dismiss for lack of subject matter jurisdiction. Cooksey v. Futrell, 721 F.3d 226, 234 (4th Cir.2013). A defendant may contest subject matter jurisdiction in one of two ways: by attacking the veracity of the allegations contained in the complaint or by contending that, even assuming that the allegations are true, the complaint fails to set forth facts upon which jurisdiction is proper. Kerns v. United States, 585 F.3d 187, 192 (4th Cir.2009). Here, despite presenting a version of the facts that differs from Durden's version with respect to the restrictions placed on Pernell, the government's challenges to jurisdiction arise under the latter framework. Specifically, the government contends that Durden's allegations, even if true, do not establish that the Army acted negligently. Additionally and alternatively, the government argues that Durden's complaint is barred by the FTCA's intentional-tort exception. Because these are facial—as opposed to factual—challenges to the complaint, Durden “is afforded the same procedural protection as [s]he would receive under a Rule 12(b)(6) consideration,” Kerns, 585 F.3d at 192 (i.e., we “assume the truthfulness of the facts alleged,” id. at 193).

On appeal, Durden opposes each of the government's bases for dismissal. We address these bases in turn.

II.

A.

“As a sovereign, the United States is immune from all suits against it absent an express waiver of its immunity.” Welch v. United States, 409 F.3d 646, 650 (4th Cir.2005). The FTCA provides for one such waiver, wherein

the 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).

“An action [for negligence] under the FTCA may only be maintained if the Government would be liable as an individual under the law of the state where the negligent act occurred.” Kerns, 585 F.3d at 194 (citing 28 U.S.C. § 1346(b)(1)). In North Carolina—where the Army's alleged negligent act or omission occurred—a defendant cannot be held liable for negligence absent a duty owed to the plaintiff and breach of that duty. Stein v. Asheville City Bd. of Educ., 360 N.C. 321, 626 S.E.2d 263, 267 (2006). Accordingly, dismissal of Durden's complaint on the...