Thigpen v. U.S.

Decision Date10 September 1986
Docket NumberNo. 85-2007,85-2007
PartiesTamara Jo THIGPEN and Jo Ann Evelyn Kramber, as Guardian ad Litem for Lisa Marie Kramber, a minor under the age of eighteen (18) years, Appellants, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Fourth Circuit

H. Fred Kuhn, Jr. (Joel D. Bailey, Moss, Bailey & Dore, P.A., Beaufort, S.C., on brief), for appellants.

Glen E. Craig, Asst. U.S. Atty. (Vinton D. Lide, U.S. Atty., Columbia, S.C. Heidi Solomon, Asst. U.S. Atty., Charleston, S.C., on brief), for appellee.

Before WIDENER, MURNAGHAN, and WILKINSON, Circuit Judges.

WILKINSON, Circuit Judge:

Appellants Tamara Jo Thigpen and Lisa Marie Kramber brought suit under the Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 1346(b) and 2671-2680, to recover damages for the sexual abuse they encountered as minor patients in the United States Naval Hospital in Beaufort, South Carolina. The district court dismissed these claims for want of jurisdiction under Fed.R.Civ.P. 12(b)(1), because they arose out of an assault and battery and thus fell within the intentional tort exception to the FTCA, 28 U.S.C. Sec. 2680(h). Thigpen v. United States, 618 F.Supp. 239 (D.S.C.1985). Appellants challenge this conclusion here, primarily asserting that no assault and battery occurred because they consented to the sexual advances. The district court rejected this contention, and we affirm its dismissal of this action.

I.

Appellants Thigpen and Kramber each suffered from a ruptured appendix. They shared a room at the Beaufort hospital in March, 1981, when they were admitted as dependents of retired military personnel. Thigpen was fourteen years old and Kramber was twelve. Both were treated by Corpsman Edmundo Rodriguez, who monitored their vital signs after the surgery and who subjected them to the depraved and abusive behavior at issue in this case.

According to Kramber's testimony at a subsequent criminal trial, Rodriguez entered her room during the early morning hours of March 18, 1981, stating that he needed to check her vital signs. Kramber was alone, because Thigpen was not yet sharing the room with her. Under the guise of determining Kramber's blood pressure, Rodriguez held her hand against his genitals, telling her to open and close her hand. She refused and grabbed the bed rail. Rodriguez asked to see Kramber's incision, and when she lifted her nightgown, he pulled down her underpants and fondled her genitals. Kramber became frightened, pulled up her underpants and told Rodriguez to stop.

Rodriguez returned the next night, after Thigpen had joined Kramber. Thigpen was asleep when Rodriguez entered, but woke to find Rodriguez examining the intravenous needle in her arm. Rodriguez went around the bed and grabbed Thigpen's other arm, forcing her hand to his genital area and asking her to open and close her hand so he could take her blood pressure the "Spanish way." Thigpen realized what was happening and pulled her hand away. Rodriguez proceeded to Kramber's bed and again tried to force her hand to his groin, when another corpsman looked into the room and interrupted the attack. 1

After learning of these incidents, Kramber's mother contacted law enforcement officials, and criminal charges were filed against Rodriguez. He was convicted of one count of contributing to the delinquency of a fourteen-year-old child and two counts of committing a lewd act upon a twelve-year-old child. State v. Rodriguez, 279 S.C. 106, 302 S.E.2d 666 (1983). It was revealed at trial that Rodriguez had pled guilty to a Texas charge of indecency with a child in 1980, before he entered the Navy. Plaintiffs contend that Rodriguez, with the consent of Navy officials, was allowed to enter the Navy rather than serve his 30-day sentence.

Thigpen and Kramber filed suits against the United States under the FTCA, asserting negligence on the part of physicians, hospital staff, and supervisory Naval personnel. The district court, relying on United States v. Shearer, --- U.S. ----, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985), found that plaintiffs' claims, though sounding in negligence, were barred by Sec. 2680(h) as claims "arising out of assault [or] battery." 2

II.

The Federal Tort Claims Act, like all waivers of sovereign immunity, must be strictly construed in favor of the sovereign. Radin v. United States, 699 F.2d 681, 685 (4th Cir.1983). Exceptions to such waivers, accordingly, receive a generous construction, with ambiguities resolved against those seeking recovery from the government. Garcia v. United States, 776 F.2d 116, 118 (5th Cir.1985). Only when Congress has clearly and unequivocally expressed its consent to suits against the United States may courts entertain such actions. United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1502, 23 L.Ed.2d 52 (1969); Radin, 699 F.2d at 684-85. In 28 U.S.C. Sec. 2680(h), Congress excepted from the grant of jurisdiction in 28 U.S.C. Sec. 1346(b) "[a]ny claim arising out of assault [or] battery." Despite plaintiffs' attempts to avoid this exception by bringing actions in negligence, we hold that 28 U.S.C. Sec. 2680(h) erects a bar to all claims which rely on the existence of an assault or battery by a government employee. 3

This interpretation has been the law of this circuit since at least Hughes v. United States, 662 F.2d 219 (4th Cir.1981), aff'g, Hughes v. Sullivan, 514 F.Supp. 667 (E.D.Va.1980). Hughes involved a postal employee, previously convicted on charges of sexual assault, who took indecent sexual liberties with two young girls. Suit was brought charging the government with "negligent retention ... of a dangerous employee." Hughes v. Sullivan, 514 F.Supp. at 668. The district court held that Sec. 2680(h) barred the claim because the employee's assault was an integral part of plaintiffs' action. Id. at 670. This court affirmed the judgment of the district court that the action was barred by 28 U.S.C. Sec. 2680(h). Hughes, 662 F.2d 219. See also, Andrews v. United States, 732 F.2d 366, 371 (4th Cir.1984) (explaining Hughes ). Hughes established that Sec. 2680(h) not only covers actual claims for assault and battery but, as its broad language indicates, also bars any claim that depends on the existence of an assault and battery. Accord, Garcia, 776 F.2d at 118; Doe v. United States, 769 F.2d 174 (4th Cir.1985); Wine v. United States, 705 F.2d 366, 367 (10th Cir.1983); Lambertson v. United States, 528 F.2d 441 (2d Cir.), cert. denied, 426 U.S. 921, 96 S.Ct. 2627, 49 L.Ed.2d 374 (1976).

Four Justices of the Supreme Court took this same view in Shearer, 105 S.Ct. at 3042-43 (four others voted to rest decision on another ground, and Justice Powell did not participate). The Court there considered the FTCA claim of a plaintiff that the Army's negligence caused her son to be murdered by a fellow serviceman. As in this case, the perpetrator of the crime in Shearer had a prior record which might have caused authorities to consider him dangerous. Yet four Justices found this action barred by Sec. 2680(h). Their opinion first noted that the plain language of the provision "does not merely bar claims for assault or battery; in sweeping language it excludes any claim arising out of assault or battery. We read this provision to cover claims ... that sound in negligence but stem from a battery committed by a Government employee." 105 S.Ct. at 3042 (emphasis in original). The opinion found further support in both legislative history and in prior constructions of parallel exceptions to the FTCA. See, e.g., Kosak v. United States, 465 U.S. 848, 104 S.Ct. 1519, 79 L.Ed.2d 860 (1984); United States v. Neustadt, 366 U.S. 696, 81 S.Ct. 1294, 6 L.Ed.2d 614 (1961). Whether or not technically bound by this view, we find its analysis persuasive. Congress intended that "Sec. 2680(h) would bar claims arising out of a certain type of factual situation--deliberate attacks by government employees." Shearer, 105 S.Ct. at 3042.

Section 2680(h) thus bars FTCA claims that allege the negligence of supervisors but depend upon the existence of an assault or battery by a government employee. Many assaults can be attributed easily enough to someone's negligence in permitting the attack to take place. To hold such allegations actionable under the FTCA would undermine Congress' clear intent to limit its waiver of immunity in Sec. 2680(h).

Our position is not consistent with that of the concurring opinion. We reject its view that Sec. 2680(h) is inapplicable whenever the government can be found to owe plaintiff "an independent affirmative duty." To begin with, this duty is elastic and would stretch to cover most claims against the governmental employees for assault and battery, as the examples in footnote 8 of the concurrence make apparent.

Moreover, the statutory derivation of our brother Murnaghan's position remains obscure. Section 2680(h) directs unequivocally that no recovery lies under the FTCA for claims "arising out of assault [or] battery." It draws no distinction for cases involving an "affirmative duty" owed by government to plaintiffs. Here there would be no claim of any sort without the fact of the assault by Corpsman Rodriguez. If the language chosen by Congress is to have meaning, this claim must be one that arises out of an assault and battery and hence is barred by Sec. 2680(h). So long as the factual predicate of the claim is one of assault and battery, adroit pleading of negligence or breach of duty on the part of government supervisors will not suffice to circumvent the statutory mandate.

III.

Appellants apparently recognize the total bar of 28 U.S.C. Sec. 2680(h) in the event of assault or battery, for they focus on the preliminary question of whether there was in fact an assault or battery here. 4 South Carolina defines battery as "the actual infliction of any unlawful, unauthorized violence on the person of another...." Gathers v. Harris Teeter Supermarket,...

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