Vallo v. U.S.

• Decision Date: 25 July 2003
• Docket Number: No. CIV. 02-1178-MCA/WDS.,CIV. 02-1178-MCA/WDS.
• Parties: Paula VALLO, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of New Mexico

Page 1231

298 F.Supp.2d 1231

Paula VALLO, Plaintiff, v. UNITED STATES of America, Defendant.

No. CIV. 02-1178-MCA/WDS.

United States District Court, D. New Mexico.

July 25, 2003.

Opinion Denying Reconsideration December 22, 2003.

Jason Bowles, Charles P. List, Sharp, Jarmie & Bowles, PA, Albuquerque, NM, for Plaintiff.

David C. Iglesias, Elizabeth M. Martinez, U.S. Attorney's Office, District of New Mexico, Albuquerque, NM, for Defendant.

MEMORANDUM OPINION AND ORDER

ARMIJO, District Judge.

INTRODUCTION

THIS MATTER is before the Court on Plaintiff's Motion to Amend filed January 30, 2003 [doc. no. 17] and United States' Motion to Dismiss or, in the Alternative, for Summary Judgment filed January 13, 2003 [doc. no. 11]. Both motions are fully briefed [doc. nos. 12, 13, 16, 18, 19, 21, 35], and there is no need for oral argument. After careful consideration of the arguments presented by the parties, along with their exhibits and the pertinent law, the Court denies Paula Vallo's (Plaintiff) request to amend the complaint and grants the United States' (Defendant) request for summary judgment. Thus, Plaintiff's complaint will be dismissed with prejudice. The Court's reasoning is set out below.

FACTUAL BACKGROUND

On September 19, 2002, Plaintiff brought a Complaint for Sexual Assault, Battery, & Money Damages, pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671 et seq.¹ [Doc. No. 1.] The complaint sets forth three claims against Defendant: (1) sexual assault and battery (Count I); (2) individual negligence for failure to properly train and supervise a detention officer, George Brown (Count II); and (3) institutional negligence for failure to perform adequate background checks for hiring and training (Count III). [Id.]

Plaintiff specifically alleges that in February 2001, while incarcerated at the Laguna Pueblo Corrections Center (LPCC)² in Laguna, New Mexico, Detention Officer George Brown (Brown) sexually assaulted and battered her. During her incarceration, Plaintiff claims that she became aware that LPCC correctional officers engaged in a pattern of initiating sexual relations with inmates, and that the guards received sex from inmates in exchange for providing those inmates with more favorable treatment. Based on Plaintiff's perception that Brown was sexually interested in her, she believed that sexual relations with him might benefit her, "perhaps easing the conditions of her incarceration." [Doc. No. 1, ¶ 9.] Plaintiff further asserts that she and Brown engaged in sex while in the booking area of LPCC when no one was around. Plaintiff claims, however, that because of Brown's authority over her, she was coerced into having non-consensual sexual relations with Brown, and that the sexual relations constituted an assault and battery. [Id., ¶¶ 21, 25.] Plaintiff also contends that Defendant negligently failed to safeguard her well being through its improper training, supervision, and hiring practices of detention officers. [Id., Counts II and III.]

Defendant asserts that has not waived its sovereign immunity as to any of Plaintiff's claims, and further alleges, inter alia, that Plaintiff consented to sexual relations with Brown. [Doc. No. 10.]

DISCUSSION

I. PLAINTIFF's MOTION TO AMEND

Plaintiff moved to amend her complaint seeking to add a claim of intentional infliction of emotional distress (IIED). [Doc. No. 17.] She argues that the government is not immune from suit under a theory of IIED. The government contends that the proposed claim of IIED is barred by the FTCA's intentional tort exception because the alleged conduct underlying the claim of IIED is based on the same conduct that supports the alleged assault and battery (which the government claims is also barred by the intentional tort exception). Thus, according to the government, the proposed amendment adding an IIED claim would be futile. [Doc. No. 21.] Plaintiff did not file a reply in support of her motion to amend.

Rule 15(a) governs circumstances where parties seek to amend a complaint after a responsive pleading has already been filed. Fed.R.Civ.P. 15(a). Such leave "shall be freely given when justice so requires." Id. While amendments are generally allowed, the most notable exceptions to that rule include a showing of undue delay, undue prejudice to the opposing party, or futility of the amendment. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Scott v. Hern, 216 F.3d 897, 906 (10th Cir.2000); Castleglen, Inc. v. Resolution Trust Corp., 984 F.2d 1571, 1585 (10th Cir.1993). See also Bell v. Manspeaker, 34 Fed.Appx. 637, 641 (10th Cir.2002) (court was within its discretion to deny proposed amendment where the amendment sought to add a claim against a party who was absolutely immune from suit). An amendment is considered futile if it would not survive a motion to dismiss or for summary judgment. Bauchman v. W. High Sch., 132 F.3d 542, 562 (10th Cir.1997), cert. denied, 524 U.S. 953, 118 S.Ct. 2370, 141 L.Ed.2d 738 (1998); E. Spire Communications, Inc. v. Baca, 269 F.Supp.2d 1310, 1329 (D.N.M.2003).

The United States, as a sovereign, is generally entitled to immunity from suit. F.D.I.C. v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (citing Loeffler v. Frank, 486 U.S. 549, 554, 108 S.Ct. 1965, 100 L.Ed.2d 549 (1988)). However, the United States may be subject to suit to the extent it waives its sovereign immunity and/or if it consents to be sued. If there is no waiver of sovereign immunity, the government is immune from suit, and the court has no subject-matter jurisdiction to hear the case. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607, reh'g denied, 446 U.S. 992, 100 S.Ct. 2979, 64 L.Ed.2d 849 (1980).

In enacting the FTCA, Congress waived the government's immunity from liability for certain torts, in particular for the negligent acts of government employees acting within the scope of their employment. 28 U.S.C. §§ 1346(b), 2671-2674. But, under an exception to that limited waiver of immunity, the United States retained its immunity from suit for certain enumerated intentional torts, including "[a]ny claim arising out of assault, battery, false imprisonment." 28 U.S.C. § 2680(h). Thus, for example, claims of assault or battery typically cannot be brought against the United States.

Plaintiff correctly points out that § 2680(h) of the FTCA does not specifically preclude an action against the United States under a theory of IIED. This is true because the tort of IIED is not enumerated in § 2680(h) as one of the torts from which the United States retains immunity. Santiago-Ramirez v. Sec'y of Dep't of Def., 984 F.2d 16, 20 (1st Cir. 1993). Accordingly, some courts have found, under certain circumstances, that the sovereign has waived immunity for IIED claims, and that such claims may proceed against the United States. Gross v. United States, 676 F.2d 295, 304 (8th Cir.1982); Crain v. Krehbiel, 443 F.Supp. 202, 211 (N.D.Cal.1977).

The narrower question here, however, is whether the claim of IIED is barred by provisions of the FTCA that permit the United States to retain its immunity as to claims "arising out of assault, battery." 28 U.S.C. § 2680(h). In other words, any claim that "arises out of" a battery could be precluded, even if the plaintiff does not explicitly identify it as a battery. Koch v. United States, 209 F.Supp.2d 89, 94 (D.D.C.2002), aff'd by, 2002 WL 31926832 (D.C.Cir.2002).

To determine whether an "arising out of" claim is excluded by § 2680, the Court must examine the actual conduct upon which plaintiff [] bases his claim for intentional infliction of emotional distress. If the alleged conduct constitutes a tort listed in § 2680, then this Court has no jurisdiction to hear the claim of intentional infliction of emotional distress. "In contrast, if a plaintiff bases a claim on conduct that does not constitute a claim `arising out of' a tort specified in § 2680(h), then the plaintiff's suit is not barred."

Id. (Internal citations omitted.)

Even if a plaintiff styles a claim so that it is not one that is enumerated in [S]ection 2680(h), the plaintiff's claim is still barred "when the underlying governmental conduct `essential' to the plaintiff's claim can fairly be read to `arise out of' conduct that would establish an excepted cause of action."

Truman v. United States, 26 F.3d 592, 594 (5th Cir.1994). (Internal citations omitted.) Thus, if the emotional distress claim is nothing more than a restatement of the battery claim, it is barred under § 2680(h). Orsay v. U.S. Dep't of Justice, 289 F.3d 1125, 1136 (9th Cir.2002).³ See also Mortise v. United States, 910 F.Supp. 74, 77 (N.D.N.Y.1995) (concluding that claims of IIED and assault were "one and the same" and that they both must be dismissed for lack of subject-matter jurisdiction), aff'd by, 102 F.3d 693 (2d Cir.1996).

Here, the Court must decide if the actual conduct upon which Plaintiff premises her proposed claim of IIED arises out of, or is merely a restatement of the alleged assault and battery. If so, the amendment of the complaint to add such a claim would be futile.

In Plaintiff's proposed amended complaint, the allegations that support the claim of the IIED refer repeatedly to Brown's conduct "in engaging in sex with Ms. Vallo [Plaintiff] without her consent." [Doc. No. 17, ¶¶ 21, 22, 24, 33 of proposed amended complaint.] Indeed, the proposed claim of IIED incorporates all of the preceding paragraphs of the complaint, including the assault and battery allegations. [Id., ¶ 32.] There are no allegations supporting a claim of IIED that could be considered separate and distinct from those upon which the alleged assault and battery are premised. Stated differently, without the alleged assault and battery, there would no claim for IIED.

It is exactly this type of scenario that requires a court to look beyond the theory upon which the plaintiff may elect to identify...