Mulloy v. US

• Citation: 884 F. Supp. 622
• Decision Date: 31 March 1995
• Docket Number: Civ. A. No. 93-11716NG.
• Parties: Mary F. MULLOY, as Administratrix of the Estate of Carol Mulloy Cuttle, Plaintiff, v. UNITED STATES, Defendant.
• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts

884 F. Supp. 622

Mary F. MULLOY, as Administratrix of the Estate of Carol Mulloy Cuttle, Plaintiff, v. UNITED STATES, Defendant.

Civ. A. No. 93-11716NG.

United States District Court, D. Massachusetts.

March 31, 1995.

COPYRIGHT MATERIAL OMITTED

Robert W. Thuotte, Witmer & Associates, Boston, MA, for plaintiff.

Susan G. Winkler, U.S. Atty's Office, Boston, MA, Phyllis J. Pyles, Steven K. Forjohn, U.S. Dept. of Justice, Torts Branch, Civ. Div., Washington, DC, and Annette Forde, U.S. Atty's Office, Boston, MA, for defendant.

MEMORANDUM AND ORDER

GERTNER, District Judge:

I. INTRODUCTION

On November 29, 1990, Carol Cuttle was kidnapped from a parking lot on the United States Army base at Schweinfurt, Germany. Ms. Cuttle, who lived on the base with her husband, an Army Captain, was subsequently taken to another location, where she was beaten, raped, robbed, and ultimately strangled to death. The perpetrator of this crime was one Private Dwan Gates, who later confessed to the offense and was sentenced by a Court Martial to life imprisonment.

Subsequent to Ms. Cuttle's murder, an investigation by the Army's Inspector General ("IG") discovered that Private Gates had had an extensive criminal record, including a previous rape conviction, at the time he had enlisted in the Army. The IG's investigation further determined that the Army personnel involved in Gates' recruitment and enlistment had failed to properly investigate his criminal background, and thus had failed to discover Gates' criminal past. Had this past been discovered, Gates would have been excluded by law from enlisting in the Army.

The plaintiff, the administratrix of Ms. Cuttle's estate, brought this action under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) ("FTCA"), charging that the negligence of the government was the proximate cause of Ms. Cuttle's rape and murder. Plaintiff contends that the Army breached a duty to Ms. Cuttle when it failed to investigate Gates' criminal background prior to his enlistment, when it failed to prevent him from coming into contact with her subsequent to his enlistment, and when it failed to warn her of his violent tendencies.

The government has moved to dismiss this action for lack of subject matter jurisdiction. The government contends that plaintiff's claims are barred because they "arise out of assault or battery," and thus fall within a statutory exception to the FTCA's general waiver of sovereign immunity. 28 U.S.C. § 2680(h). In addition, the government contends that any failure on its part to warn or protect Ms. Cuttle or to properly supervise or control Gates must also be barred by two other FTCA exceptions, which exclude claims arising on foreign soil (28 U.S.C. § 2680(k)), or arising from the exercise of a discretionary government function (28 U.S.C. § 2680(a)). For the reasons stated below, the government's motion is DENIED.

II. FACTS

On May 17, 1990, Dwan Gates walked into the Army's West Madison Street Recruiting Station in Chicago, and expressed his interest in becoming a soldier. This was Gates' second attempt at enlistment. Five months earlier, Gates had attempted to enlist at the same recruiting station, but had been rejected because he was the subject of an ongoing criminal prosecution.

This time, however, Gates was successful. On May 31, 1990, after completing the Army's medical and vocational tests, he shipped to Fort Knox, Kentucky, for training as an armor crewman. Eventually, he was transferred to the Army base at Schweinfurt, where the rape and murder of Ms. Cuttle occurred.

After Gates was apprehended and confessed to the attack on Ms. Cuttle, his lengthy criminal record came to the attention of Army personnel. It was revealed that, prior to his enlistment, Gates had been convicted, on three separate occasions, of serious crimes. His first conviction occurred in April, 1986, when he was tried as a juvenile and found guilty of aggravated burglary and rape. In 1987, he was convicted as an adult of burglary and attempted theft, and in 1989 he was convicted again on a variety of weapons charges. Because federal law bars convicted felons from entering the armed forces except by special waiver, these facts, had they been known, and had there been no waiver, would have barred Gates' enlistment.

After Gates' criminal history was revealed, the Army's Recruiting Command (USAREC) conducted an internal investigation to determine why his application had been allowed to proceed. This investigation resulted in a finding that USAREC had done nothing improper.

Subsequently, at the behest of Ms. Cuttle's relatives, the IG conducted an independent investigation of USAREC's handling of Gates' enlistment. Contrary to USAREC's internal report, the IG's investigation discovered widespread misfeasance at every step of the recruitment process and found that USAREC's own investigation had failed to comply with Army regulations. The report concluded that were it not for the "dereliction or apathetic performance" of duty by USAREC personnel, Gates' enlistment would never have been approved.

The IG's report found two significant areas in which Gates' enlistment was mishandled. The first related to the failure of USAREC personnel to investigate discrepancies in the information which Gates' had provided on his application form. Gates stated that he had attended Lawrence Gardner High School in Kansas from September, 1984 until June, 1986, and that he had attended National Technical College in Chicago from August 1986 until October, 1989. This information was contradicted by his high school diploma, which indicated a December, 1987 graduation date, and by his high school transcript, which indicated that he had attended Leavenworth High School from 1984 to 1987, had passed the GED exam in October 1987, and had not been released from "Lawrence Gardner High School-Youth Center" until October, 1988. Had recruiters investigated this discrepancy, they would likely have discovered that Gates' had been attending high school in a Kansas youth detention facility, where he had been serving time for crimes he had not reported to his recruiter. Moreover, the mere fact that Gates' had made misrepresentations on his application would have disqualified him for enlistment.

Gates' application also misstated his criminal history. It failed to reveal any of his previous convictions, and stated only that he had been arrested on drug possession charges, but that the charges had been dropped. Even in that case, however, Gates' description was inconsistent with court documents. The dates were incorrect and the documents showed that the charges had not been dropped, but that he had been acquitted after a trial. Nonetheless, no USAREC personnel investigated the matter further.

The second area in which the IG's report found negligence by USAREC personnel was in the conduct of Gates' background check. Army regulations require that a two stage Entrance National Agency Check (ENTNAC) be conducted for every new enlistee. In the first stage, the requesting agency provides information about the enlistee to the Defense Investigative Service (DIS), which in turn conducts an automated search of national crime databases to determine if the enlistee has a criminal record. If this search reveals a possible match, the requesting agency may then initiate a "manual" search, in which specific court records relating to the enlistee's criminal history are produced.

In Gates' case, USAREC personnel in Chicago initiated an ENTNAC for Gates on May 21, 1990, shortly after his enlistment. However, on May 31, 1990, prior to receiving a response from DIS, Gates was shipped to Fort Knox, Kentucky to begin his training. On June 5, 1990, DIS reported that the ENTNAC had revealed a "possible match" of a criminal record with the potential enlistee. This should have alerted the Army to Gates' criminal past. However, because Gates' had already shipped to Fort Knox, Army regulations required the USAREC personnel in Chicago to forward this initial result to Fort Knox, for further investigation. They failed to do so. Moreover, Fort Knox personnel had an independent obligation pursuant to Army regulations to conduct their own investigation if, as was the case, no ENTNAC report had been placed in Gates' recruiting file within five weeks of his enlistment. No such investigation was made.

As a result of these various failures of duty by Army personnel, Gates was permitted to complete basic training, and to ship overseas to Germany, without any meaningful scrutiny of his personal history. The Inspector General's report indicated that six recruiting experts "clearly opined that had any one person involved with PVT Gates' enlistment process complied with established policies, regulatory guidance, proper procedures, and accepted recruiting practices, PVT Gates' ineligibility for enlistment into the U.S. Army would have been readily disclosed."

III. SUBJECT MATTER JURISDICTION STANDARD

In considering a motion to dismiss, the Court assumes that all the material allegations set forth in the complaint are true. Williams v. City of Boston, 784 F.2d 430, 433 (1st Cir.1986). The averments of the complaint, as well as the proper inferences arising therefrom, are liberally construed in favor of the plaintiff and the claim will not be dismissed unless "it appears beyond doubt that the plaintiff can provide no set of facts in support of her claim which would entitle her to relief." Id.

IV. ANALYSIS

A. The Assault and Battery Exception

The government's principal argument is that this action is barred by the so-called "assault and battery" element of the intentional tort exception to the FTCA. That exception, codified at 28 U.S.C. § 2680(h), provides, in relevant part, that the provisions of the FTCA shall not apply to "any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation,...