Opinion
Civ. No. JFM-97-4086.
January 15, 1999.
MEMORANDUM
Plaintiff, Andrea Jenkins, has brought this action against defendant United States, alleging false imprisonment, intentional infliction of emotional distress and invasion of privacy. The United States has filed a motion to dismiss the complaint. The motion will be granted.
Jenkins's complaint also included a claim for alleged violation of her constitutional rights (Count IV). Jenkins has conceded that that Count should be dismissed.
I.
The basis of this action is the allegations that Edward Jackson, a civilian executive employee of the United States Navy, sexually assaulted Jenkins and committed battery against her. Jenkins originally filed an action against Jackson. Because the complaint implicated Jackson's employment relationship with the Navy, this Court substituted the United States as the sole defendant. The case was subsequently dismissed, though two of the counts were dismissed without prejudice.
In April 1996, Jenkins filed a second complaint against Jackson in the Circuit Court of Maryland for Charles County. The claims in the second complaint were nearly identical to the claims in the first complaint, and arose out of the same factual allegations, but restricted the allegations to those involving assault and battery outside the workplace. The action against Jackson is still pending in the Circuit Court.
On December 4, 1997, Jenkins filed the instant action against the United States.
II.
As a sovereign, the United States is immune from suit except to the extent that it has consented to be sued. The Federal Tort Claims Act ("FTCA") sets forth a limited waiver of sovereign immunity for certain common law tort claims. The limits that Congress has placed on its waiver of sovereign immunity must be strictly construed in favor of immunity. See Smith v. United States, 507 U.S. 197, 204 (1993).
Count I of Jenkins's complaint alleges false imprisonment. The FTCA expressly provides that, in most instances, the United States does not consent to be sued for false imprisonment. See 28 U.S.C. § 2680(h). This case does not present any of the exceptions to that general rule.
Jenkins's other two counts allege intentional infliction of emotional distress and invasion of privacy. She has based those claims on her factual allegations that Jackson subjected her to sexual and physical contacts, repeated requests and demands for sexual activity, questions about her sexual habits and preferences, and other harassing comments. Those facts amount to allegations of sexual assault and battery. Because Congress has expressly stated that claims "arising out of" assault and battery are not actionable under the FTCA, Jenkins's intentional infliction and invasion of privacy claims must be dismissed. See 28 U.S.C. § 2680(h).
In addition, the facts alleged in this case do not rise to level of outrageousness required to sustain an intentional infliction claim. The Maryland Court of Appeals has only upheld intentional infliction claims where the alleged acts were far more egregious than those present here. Cf. Figueiredo-Torres v. Nickel, 584 A.2d 69, 76 (Md. 1991) (finding behavior sufficiently outrageous where psychologist, acting as marriage counselor, had sexual relations with plaintiff's wife); B.N. v. K.K., 538 A.2d 1175, 1181 (Md. 1988) (determining that intentional exposure of plaintiff to herpes was sufficiently outrageous).
Jenkins attempts to categorize this case as one within the limited exception stated in Sheridan v. United States, 487 U.S. 392 (1988). In that case, the Supreme Court established that where an independent basis for government liability exists, other than a theory involving an employer-employee relationship, the government may be held liable for an intentional tort. See id. No such independent theory is present in this case. If Jackson were not a federal employee at the time he committed the alleged acts, Jenkins would have no claim against the United States.
For the foregoing reasons, defendant United States's motion to dismiss is granted. A separate order to that effect is being entered herewith.