Ross v. United States

1

ELNORA ROSS, as Administratrix of the Estate of C.N., Deceased, Plaintiff, v. THE UNITED STATES OF AMERICA, and SERGEANT JOHN DOE, Defendants.

No. 5:23-cv-01157 (BKS/ML)

United States District Court, N.D. New York

September 23, 2024

Appearances:

For Plaintiff:

Patricia A. Lynn-Ford

Kaitlyn Marie Guptill

Lynn Law Firm, LLP

For Defendant United States of America:

Carla B. Freedman United States Attorney Northern District of New York

Forrest T. Young Assistant United States Attorney

DECISION AND ORDER

HON BRENDA K. SANNES, CHIEF UNITED STATES DISTRICT JUDGE:

I. INTRODUCTION

Plaintiff Elnora Ross brings this lawsuit as Administratrix of the Estate of C.N., Deceased, against Defendants United States of America and “Sergeant John Doe.” (Dkt. No. 1).^[1] Plaintiff alleges that in January 2011 Sergeant Doe sexually assaulted C.N., who was, at the time, a 19-year-old Private in the Department of the Army, stationed at Fort Drum, New York, under Sergeant's Doe's command. (Id. ¶¶ 16, 20, 28). Plaintiff asserts three common law tort claims against the United States and Sergeant Doe under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b)(1): (1) a claim of “intentional acts” against Sergeant Doe (“Count I”), (Dkt. No. 1, ¶¶ 38-47); (2) a claim of negligent hiring, training, supervision, and control against the Department of the Army (sued as the United States) (“Count II”), (id. ¶¶ 48-61); and (3) a claim of wrongful death against the Army (“Count III”), (id. ¶¶ 62-67 (alleging the Army's negligence resulted in C.N.'s severe mental anguish which “drove [C.N.] to take her own life on October 27, 2021”)).

Presently before the Court is Defendant United States' motion to dismiss Plaintiff's negligence and wrongful death claims (Counts II and III) under Federal Rules of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and 12(b)(6) for failure to state a claim. (Dkt. No. 10). The parties have filed responsive briefing. (Dkt. Nos. 18, 19). For the reasons below, Defendant's motion to dismiss Counts II and III under Fed.R.Civ.P. 12(b)(1) is granted.

II. FACTS^[2]

In January 2011, C.N., age 19, was a Private in the Department of the Army and stationed at Fort Drum, New York. (Dkt. No. 1, ¶ 20). On or about January 29, 2011, C.N. was transported in Sergeant Doe's car to a house party and thereafter was unlawfully supplied, permitted and allowed to consume multiple alcoholic beverages by Sergeant Doe and other fellow officers and/or soldiers. (Id. ¶ 22). C.N. “was observed by those service personnel present to be visibly intoxicated.” (Id. ¶ 23). Sergeant Doe then drove C.N. to a local bar, where he and other soldiers supplied her with additional alcoholic beverages. (Id. ¶ 24). C.N. became “even further intoxicated” as evidenced by her erratic behavior, multiple falls, and difficulty walking and staying awake. (Id. ¶ 25). Sergeant Doe carried C.N. to his vehicle and drove her to a Microtel where he brought her to a hotel room he paid for in cash. (Id. ¶¶ 25-26). In the hotel room, Sergeant Doe forcibly sexually assaulted C.N. while she was intoxicated and unable to consent. (Id. ¶ 28). A fellow Private drove C.N. back to barracks the next morning. (Id. ¶ 29).

C.N reported the sexual assault, and the Army's investigation revealed facts substantiating C.N.'s intoxication. (Id. ¶¶ 30-31). According to a “Military Police Report,” C.N.'s report of criminal conduct “was evaluated to be ‘founded' based upon New York State criminal statutory offenses including first degree rape.” (Id. ¶ 33). “Said report notes that [C.N.] reported the sexual assault and that her superior, Sergeant John Doe, provided her with multiple alcoholic beverages[,] . . . offered to take her back to her barracks and instead took her to a hotel where he engaged in non-consensual sexual intercourse with her.” (Id. ¶ 34). The report indicates, however, that upon Army coordination with New York State Police, the allegations did not meet the elements of a crime under the New York State Penal Code. (Dkt. No. 18-4, at 14). As such, the New York State Police declined to conduct further investigative activity. (Id.).

Once the New York State Police declined to investigate, the Department of the Army Criminal Investigation Division (CID) assumed position as the lead investigative agency. (Dkt. No. 18-5, at 9). According to the CID Agent's Investigation Report, on May 11, 2011, a written legal opinion “reflected probable cause existed to believe [Sergeant Doe] committed the listed offenses for this investigation.” (Id. at 65). Two days later, C.N. was contacted and briefed on the closure of the investigation. (Id.). The report does not explain why the investigation was closed despite a finding of probable cause. (Id.). Plaintiff alleges that Sergeant Doe was never prosecuted and remained in the employ of the United States Army and stationed at Fort Drum. (Dkt. No. 1, ¶ 36).

In an affidavit, Plaintiff, C.N.'s mother, states that C.N. was subsequently honorably discharged from the Army in December of 2012. (Dkt. No. 18, ¶ 25). After her discharge, she returned home to Alabama, where she demonstrated concerning behavior including suicidal threats and heavy drinking. (Id. ¶ 26). In 2015, C.N. received psychological care at the Veteran's Hospital in Birmingham, Alabama and was diagnosed with Chronic Post Traumatic Stress Disorder, Panic Disorder, and Persistent Alcohol Abuse. (Id. ¶ 27). Her records linked these mental health conditions to the alleged sexual assault. (Id.). C.N. reported to her psychiatrist that she had nightmares of Sergeant Doe's face and flashbacks. (Id.). In 2020, C.N. was admitted to a hospital from July 23, 2020 through July 27, 2020 for psychiatric care because of suicidal threats she made. (Id. ¶ 28). Ultimately, on October 27, 2021, C.N. took her own life. (Dkt. No. 1, ¶ 47). C.N. was survived by her mother, Plaintiff, and her three minor children. (Id. ¶ 13).

III. ANALYSIS

A. Standard of Review

“A court faced with a motion to dismiss pursuant to both Rules 12(b)(1) and 12(b)(6) must decide the jurisdictional question first because a disposition of a Rule 12(b)(6) motion is a decision on the merits and, therefore, an exercise of jurisdiction.” Mann v. N.Y. State Ct. of Appeals, No. 21-cv-49, 2021 WL 5040236, at *3, 2021 U.S. Dist. LEXIS 209018, at *8 (N.D.N.Y. Oct. 29, 2021) (citation omitted). “In resolving a motion to dismiss under Rule 12(b)(1), the district court must take all uncontroverted facts in the complaint . . . as true[ ] and draw all reasonable inferences in favor of the party asserting jurisdiction.” Tandon v. Captain's Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014) (citation omitted). A court may also “refer to evidence outside the pleadings” and “take judicial notice of documents in the public record[.]” Krajisnik Soccer Club, Inc. v. Krajisnik Football Club, Inc., No. 20-cv-1140, 2021 WL 2142924, at *2, 2021 U.S. Dist. LEXIS 99456, at *5 (N.D.N.Y. May 26, 2021) (citations omitted).

To survive a motion to dismiss under Rule 12(b)(6) for failure to state a claim, “a complaint must provide ‘enough facts to state a claim to relief that is plausible on its face.'” Mayor & City Council of Balt. v. Citigroup, Inc., 709 F.3d 129, 135 (2d Cir. 2013) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The plaintiff must provide factual allegations sufficient “to raise a right to relief above the speculative level[.]” Id. (quoting Twombly, 550 U.S. at 555). A court must accept as true all factual allegations in the complaint and draw all reasonable inferences in the plaintiff's favor. See EEOC v. Port Auth., 768 F.3d 247, 253 (2d Cir. 2014) (citing ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

B. Intramilitary Immunity / Feres Doctrine

Defendant argues that “[t]he Complaint must be dismissed because the Court lacks subject matter jurisdiction” under Rule 12(b)(1) because “Plaintiff's claims against the United States are barred by intramilitary immunity (Feres doctrine)[.]” (Dkt. No. 10-1, at 3). “[T]he proper vehicle for dismissing a Feres-barred FTCA claim is a dismissal for lack of subjectmatter jurisdiction.” Wake v. United States, 89 F.3d 53, 57 (2d Cir. 1996). Plaintiff opposes Defendant's motion, arguing that Sergeant Doe's alleged sexual assault was “not incident to military service and thus is not barred by intramilitary immunity[.]” (Dkt. No. 18-10, at 5).

The Feres doctrine generally bars FTCA claims against the United States where the alleged injuries arise out of activity incident to military service. See generally Feres v. United States, 340 U.S. 135 (1950). The “incident to service test” asks whether “particular suits would call into question military discipline and decisionmaking [and would] require judicial inquiry into, and hence intrusion upon, military matters.” United States v. Stanley, 483 U.S. 669, 682 (1987). Because, as discussed below, Plaintiff's claims require judicial inquiry into military matters, dismissal for lack of subject-matter jurisdiction is appropriate here.

Feres immunity is partially rooted in the need to preserve the military discipline structure and prevent judicial involvement in sensitive military matters. See United States v. Johnson, 481 U.S. 681, 688-91 (1987). Soldiers and their superiors have a peculiar relationship, and FTCA suits of this nature would affect military discipline possibly resulting in extreme results. United States v. Muniz, 374 U.S. 150, 162 (1963) (quoting United States v. Brown, 348 U.S. 110,...