Thigpen v. United States, Civ. A. No. 2:85-0459-1

• Decision Date: 12 September 1985
• Docket Number: Civ. A. No. 2:85-0459-1,2:85-0460-1.
• Citation: 618 F. Supp. 239
• Court: U.S. District Court — District of South Carolina
• Parties: Tamara Jo THIGPEN, Plaintiff, v. UNITED STATES of America, Defendant. Joann Evelyn KRAMBER, as Guardian ad Litem for Lisa Marie Kramber, a minor under the age of eighteen (18) years, Plaintiff, v. UNITED STATES of America, Defendant.

618 F. Supp. 239

Tamara Jo THIGPEN, Plaintiff, v. UNITED STATES of America, Defendant.

Joann Evelyn KRAMBER, as Guardian ad Litem for Lisa Marie Kramber, a minor under the age of eighteen (18) years, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. A. Nos. 2:85-0459-1, 2:85-0460-1.

United States District Court, D. South Carolina, Charleston Division.

September 12, 1985.

Joel D. Bailey and H. Fred Kuhn, Beaufort, S.C., for plaintiffs.

Glen E. Craig, Asst. U.S. Atty., Columbia, S.C., and Heidi Solomon, Asst. U.S. Atty., Charleston, S.C., for defendant.

AMENDED ORDER

HAWKINS, District Judge.

These sexual abuse cases arise under the Federal Tort Claims Act. 28 U.S.C. § 2671. The defendant moves to dismiss both cases for lack of jurisdiction over the subject matter. Rule 12(b)(1), Fed.R.Civ.P.¹ It argues, inter alia, that the plaintiffs' claims are barred by the intentional tort exception to the Act, 28 U.S.C. § 2680(h), and that the government's employee, Edmundo Rodriguez, was acting outside of the scope of his employment when he sexually assaulted the girls. This court agrees with the defendant. For reasons to be stated, it is the opinion of this court that the defendant's motion to dismiss should be granted.

A. FACTS AND PROCEDURAL HISTORY

Lisa Marie Kramber (hereinafter "Kramber")² is the daughter of Gary Kramber, United States Marine Corps (Ret.). On March 15, 1981, she was admitted as a twelve-year-old patient to the United States Naval Hospital in Beaufort, South Carolina, suffering from a ruptured appendix. She was entitled to receive medical care from the defendant because she is her father's dependent.

Tamara Jo Thigpen (hereinafter "Thigpen") was fourteen years old in early 1981. On March 17 of that year she, like Kramber, was admitted to the Naval Hospital in Beaufort for treatment of a ruptured appendix. Thigpen was entitled to receive medical care from the United States because she is a dependent of her father, Pascal Gene Thigpen, United States Marine Corps (Ret.).

Following the removal of her appendix, Kramber was taken to the hospital's Intensive Care Unit. There she was treated by Corpsman Edmundo Rodriguez, who checked her vital signs and monitored her recovery from the anesthesia.

From the Intensive Care Unit, Kramber was transferred to a room on the fourth floor of the hospital. On the afternoon of March 17, 1981, with her mother present, Rodriguez came into her room to check on her progress. During the early morning hours of March 18, 1981, Rodriguez returned to Kramber's room and stated that he needed to check her vital signs. She noticed that he did not have a blood pressure cuff. Rodriguez extended Kramber's arms and twice attempted to force her to touch his groin area. He told her to open and close her hand because this was the "Spanish way" of determining blood pressure. She refused and grabbed the handrail on her bed.

After this unsuccessful attempt, Rodriguez asked to see Kramber's incision. He lifted up her gown and then pulled down her underpants. Rodriguez fondled her genitals; Kramber became frightened, pulled up her underpants, and told him to stop. Rodriguez left the room.

Thigpen's case is similar. Following her appendix surgery on March 18, she was taken to the hospital's Intensive Care Unit. While recovering from the anesthesia, she was attended by Rodriguez. From the Intensive Care Unit, Thigpen was transferred to Kramber's room. During the early morning hours of March 19, Rodriguez came into the girls' room. First, he approached Thigpen, who was asleep. She awoke and found Rodriguez examining the intravenous needle in her arm. He asked her if it was bothering her. She said that it was and asked that a cool rag be placed on her forehead.

Rodriguez went around to the other side of the bed and picked up her other arm. He forced her hand to his genital area and instructed her to open and close her hand so that he could take her blood pressure the "Spanish way." She opened her hand, realized what he was doing, pulled her hand away, and reached for the cool cloth. Rodriguez placed it on her head and told her to "cool down."

Leaving Thigpen, he went to Kramber's bed. Kramber, who had seen him enter the room and accost her roommate, and who overheard part of Thigpen's and Rodriguez's conversation, realized that he would probably repeat his action of the previous night. True to form, he tried to force her hand to his groin, all the while telling her to open and close her hand. She refused and grabbed the bed handrail. Another corpsman looked into the room and interrupted Rodriguez's attack. The unknown corpsman closed the door. Rodriguez was about to leave when the door opened and a third corpsman came in with a thermometer box and blood pressure cuff. As he entered, Rodriguez left the room and said he would be back in twenty minutes. He did not, however, return.

The following morning the girls discussed the incident between themselves. Mrs. Kramber visited her daughter. When she took her into the bathroom to help her change clothes, Kramber started crying and told her mother about the corpsman's attack. Mrs. Kramber became very upset, confronted her daughter's treating physician, Dr. Pearce, and told him she wanted her daughter out of the hospital. Pearce's initial response was that Kramber probably suffered a reaction to her medication. Mrs. Kramber pressed him with the matter. After conferring with another doctor, Pearce removed Kramber's stitches and discharged her from the hospital.

At home, Kramber developed a high fever. After receiving assurances that Rodriguez had been restricted to quarters, Mrs. Kramber readmitted her daughter to the hospital where she again shared a room with Thigpen.

Upon her daughter's discharge and recovery from surgery, Mrs. Kramber contacted Beaufort County law enforcement authorities. Rodriguez was brought to trial on October 21, 1981. He was convicted in the Beaufort County Court of General Sessions of two counts of committing a lewd act upon a 12-year-old child and one count of contributing to the delinquency of a 14-year-old child. State v. Rodriguez, 279 S.C. 106, 302 S.E.2d 666 (1983). Rodriguez was sentenced to nine years on the two counts and three years on the other count. In addition, it was revealed at the trial that Rodriguez, prior to enlisting in the Navy, pled guilty in 1980 in a State of Texas court to indecency with a child. He committed this crime on October 16, 1979, when he touched the genitals and breasts of a 10-year-old child and forced her to touch his genitals. He was sentenced to an indefinite period of probation, thirty days of incarceration, and ordered to submit to psychiatric counselling. The plaintiffs contend that, despite this sentence, an agreement was reached among Rodriguez, his attorney, his probation officer, Navy enlistment personnel, and the sentencing judge which allowed Rodriguez to enlist in the Navy instead of serving his sentence.

On February 15, 1985, Kramber and Thigpen each filed suits in this court. They assert five theories of recovery against the defendant:

(1) Negligence of the plaintiffs' treating physicians in failing to obtain their informed consent;

(2) Breach of recognized standards of medical care by hospital staff in allowing a child molester to participate in the treatment and care of a child;

(3) Breach of supervisory Naval personnel of their duty to recruit, assign and retain, qualified, suitable medical personnel;

(4) Negligent supervision and control by the hospital staff; and,

(5) Negligence of the hospital staff for failing to provide adequate security on the defendant's premises.

On May 20, 1985, the defendant filed its motion to dismiss in the Thigpen case. The Government filed an identical motion to dismiss in Kramber's case on June 2, 1985. On June 17, 1985, plaintiff Thigpen submitted a memorandum opposing the motion to dismiss. On June 19, 1985, the court heard oral argument on the motions. At this hearing, the parties stipulated that all motions and arguments made in the Thigpen case would be fully applicable to the Kramber case because the facts in each are nearly identical. At the hearing, the court took the defendant's motions under advisement and permitted the parties to file supplemental memoranda in support of their positions. Since the date of the hearing, memoranda, letters and affidavits were received by the court from plaintiffs and defendant.

B. THE DEFENDANT'S MOTION TO DISMISS

The defendant asserts three grounds in support of its motion to dismiss. First, it argues that this court lacks jurisdiction because the plaintiffs' administrative claims failed to apprise it of its potential liability for medical malpractice. Adams v. United States, 615 F.2d 284, 289 (5th Cir.1980).

Second, it contends that plaintiffs' claims are barred by the assault/battery exception of 28 U.S.C. § 2680(h) because Rodriguez's conduct inflicted unauthorized, unlawful violence and created reasonable fear of bodily harm. Mary Doe v. United States, 769 F.2d 174 (4th Cir.1985); Hughes v. United States, 662 F.2d 219 (4th Cir.1981); Turner v. United States, 595 F.Supp. 708 (W.D.La. 1984); Taylor v. United States, 513 F.Supp. 647 (D.S.C.1981). Contra, Andrews v. United States, 732 F.2d 366 (4th Cir.1984).

Finally, the defendant asserts that the plaintiffs' claims are barred by the "scope of employment" requirement under 28 U.S.C. § 1346(b) because Rodriguez's actions had nothing to do with his duties as a hospital corpsman. Without passing on the defendant's argument regarding plaintiffs' administrative claims, the court finds the other two arguments compelling. Therefore, it grants the motion to dismiss on the following two grounds.

1. The Assault and Battery Exception

Title 28, United States Code Section 2680(h), provides in pertinent part:

The provisions of this chapter and § 1346(b) of this title shall not apply to ...

(h) Any claim arising out of assault,

...