Doe v. United States (381 F. Supp. 3d 573, 2019)

OSTEEN, JR., District Judge

Presently before this court is the Motion to Dismiss Plaintiffs' Amended Complaint filed by Defendant United States of America (the "Government"). (Doc. 40.) The Government has filed a brief in support of its motion. (Doc. 41.) Plaintiffs Lynn Doe, Ann Doe, Ellen Doe, and Cindy Doe (collectively, "Plaintiffs") have filed a response in opposition, (Doc. 46), and the Government has replied, (Doc. 49).

Also before this court is the Motion to Dismiss Plaintiffs' Amended Complaint filed by Defendants Stephen J. Sicinski, Kim McBroom, Annette Skinner Coleman, and Emily Marsh (collectively, "Individual Defendants," and together with the Government, "Defendants"). (Doc. 42.) The Individual Defendants have filed a brief in support of their motion. (Doc. 43.) Plaintiffs have responded in opposition, (Doc. 47), and the Individual Defendants have replied, (Doc. 50). Defendants' Motion for a Stay in Light of Lapse of Appropriations is also before this court. (Doc. 48.) On March 14, 2019, this court heard oral argument on both motions to dismiss. For the reasons stated herein, the Government's Motion to Dismiss, (Doc. 40), will be granted in part and denied in part. The Individual Defendants' Motion to Dismiss, (Doc. 42), will be granted. And Defendants' Motion for a Stay, (Doc. 48), will be denied as moot.

I. BACKGROUND

Plaintiffs allege that Jose Nevarez ("Nevarez"), an instructor at Department of Defense ("DoD") elementary schools located on the Fort Bragg military installation in North Carolina, sexually abused their children. (Amended Complaint ("Am. Compl.") (Doc. 39) ¶¶ 1, 2, 31.) Plaintiffs bring this lawsuit alleging wrongful acts and omissions by the Defendants, in violation of duties owed to Plaintiffs' children pursuant to a federal statute, DoD regulations, and North Carolina common law. (E.g., id. ¶¶ 10, 13.)

A. Parties

Plaintiff Lynn Doe is the mother and Guardian ad Litem for minors "Robby" and "Timmy." (Id. ¶ 22.) Plaintiff Ann Doe is the mother and Guardian ad Litem for minor "Adam." (Am. Compl. (Doc. 39) ¶ 23). Plaintiff Ellen Doe is the mother and Guardian ad Litem for minor "Danny." (Id. ¶ 24.) Plaintiff Cindy Doe is the mother and Guardian ad Litem for minor "Wyatt." (Id. ¶ 25.)

Defendant Sicinski is a colonel in the United States Army and was the Fort Bragg Garrison Commander during the relevant time. (Id. ¶ 27.) Defendant McBroom was the principal at Fort Bragg's Pope Elementary School ("Pope Elementary") beginning in the fall of 2011 and during the relevant time thereafter. (Id. ¶¶ 28, 94). Defendant Coleman was a counselor at Pope Elementary during the relevant time. (Id. ¶ 29.) Defendant Marsh was the Fort Bragg District Superintendent during the relevant time. (Id. ¶ 30.)

B. Factual Allegations

The facts, viewed in the light most favorable to Plaintiffs, are as follows.

Plaintiffs do not allege when Nevarez was hired as an instruction at Fort Bragg's DoD-operated elementary schools. Whenever Defendants hired Nevarez to be a substitute teacher, teacher's aide, and paraprofessional educator ("parapro"), they allegedly did not conduct a thorough background check, in violation of DoD regulations. (Id. ¶¶ 47-48, 50.) The background check Defendants did conduct failed to obtain information from Nevarez's home jurisdiction of Puerto Rico. (Id. ¶ 50.) Plaintiffs allege that a more thorough background check would have revealed prior allegations of sexual abuse from 2006, (id. ¶¶ 46, 48), and that Defendant Marsh later "admitted that had the background check been completed Nevarez would not have been hired." (Id. ¶ 50.) Because Defendants did not conduct a thorough background check, Defendants were allegedly required to subject Nevarez to line-of-sight supervision or video monitoring in accordance with DoD regulations, which Defendants did not do. (Id. ¶¶ 49, 51.)

As a result, Plaintiffs allege that Nevarez sexually abused elementary school students from August 2010 through November 2012 at several Fort Bragg schools, including Pope Elementary. (See id. ¶ 38.)

1. Nevarez's Conduct at Pope Elementary

From 2010 until at least November 2011 and March 2012 at the latest, Nevarez was a substitute teacher and teacher's aide at Pope Elementary. (See id. ¶¶ 39, 121.) Robby, Timmy, Adam, Danny, and Wyatt (collectively, "Minor Plaintiffs") attended Pope Elementary during this time. (Id. ¶ 39.) Minor Plaintiff Robby is autistic, (id. ¶ 22), and Defendants assigned Nevarez to be Robby's parapro for the 2010-11 and 2011-12 academic years. (Id. ¶¶ 39, 44, 192.) During this time, Nevarez allegedly sexually abused Minor Plaintiffs in school classrooms and bathrooms during school hours. (See id. ¶¶ 40-41.)

In the spring of 2011, Danny became apprehensive about attending school and repeatedly stayed home. (See id. ¶¶ 57, 59.) Danny and his mother met with a social worker in June 2011. (See id. ¶ 58.) Danny's mother specifically asked the social worker if something occurring at school could be causing Danny's distress, which the social worker allegedly dismissed. (Id. ¶¶ 60-61.) Shortly thereafter, Danny's mother met with the then-Principal of Pope Elementary, Joel Grim, to discuss Danny's newfound apprehension. (Id. ¶ 64.) Plaintiffs allege that neither the social worker nor Principal Grim fully investigated Danny's change in behavior. (Id. ¶¶ 62, 65, 68.) Had they, Plaintiffs contend, they would have identified signs of sexual abuse. (Id. ¶ 68.)

In September 2011, Nevarez allegedly sexually molested two unidentified Pope Elementary students. (See id. ¶ 55.) On October 11, 2011, Adam began crying and told his mother that Nevarez made Adam sit on his lap and "stroked his inner thigh" during class. (Id. ¶¶ 72, 74.) Adam screamed and told his mother that he did not want to sit on Nevarez's lap anymore. (Id. ¶ 73.) Adam and his mother immediately met with Defendant Coleman, the school counselor at Pope Elementary. (Id. ¶¶ 78, 80.) Adam allegedly told Coleman that "Nevarez was touching him and making him sit on Nevarez's lap and that he did not want to attend school anymore because he was scared that Nevarez would be there and touch him again." (Id. ¶ 81.) Coleman allegedly dismissed Adam's claims, defended Nevarez, and suggested that Adam had initiated any contact with Nevarez. (Id. ¶¶ 82, 84.) Adam's mom responded that "Adam was not responsible for Nevarez sexually abusing him." (Id. ¶ 86.) Coleman then asserted that Defendants took allegations of child abuse seriously, and she promised to report Adam's disclosure and make sure that it was investigated. (Id. ¶ 89.)

Plaintiffs allege, upon information and belief, that Coleman informed Defendant McBroom, Pope Elementary's Principal, of Adam's disclosure. (Id. ¶ 94.) Plaintiffs allege that neither Coleman nor McBroom investigated Adam's claim or reported Adam's disclosure to their supervisors or the local United States Army Family Advocacy Program ("FAP") officer as they were required to under the DoD regulations. (Id. ¶¶ 94, 95, 106, 113, 231.) Instead, "[s]oon after" Adam's disclosure, Defendant Coleman allegedly told Nevarez about it. (Id. ¶ 97). Nevarez then returned to his classroom, told Adam about his conversation with Coleman, and proceeded to sexually abuse Adam by "strok[ing] Adam's penis and anus underneath his clothing" while Adam sat on Nevarez's lap. (Id. ¶¶ 98-102.) Defendant McBroom allegedly assigned Nevarez to Pope Elementary classrooms on at least seventeen days in the two months following Adam's disclosure, including to Adam's and other Minor Plaintiffs' classrooms, where Nevarez allegedly abused them. (Id. ¶ 110.)

On November 8, 2011, Wyatt resisted attending school and told his mother that Nevarez was inappropriately touching him and other students. (See id. ¶¶ 118-19.) Wyatt's mother informed her husband, who reported Wyatt's disclosure to the Fort Bragg Military Police that same day. (Id. ¶ 120.) Wyatt's parents met with Defendants McBroom and Coleman shortly thereafter. (Id. ¶ 123.) Coleman denied that Nevarez had sexually abused students or that he would do so. (Id. ¶¶ 124-25.) McBroom informed Wyatt's parents that Defendants followed protocol after becoming aware of Nevarez's sexual abuse. (Id. ¶ 126.) McBroom offered no assistance in providing Wyatt with counseling or treatment. (See id. ¶ 128.) Plaintiffs allege that neither Coleman nor McBroom reported Wyatt's disclosure in accordance with DoD regulations. (Id. ¶ 129.) On or around November 8, 2011, Defendants "removed Nevarez from the classroom," but did not remove him from the base. (See id. ¶ 121.)

On January 6, 2012, Plaintiffs allege that Defendants received another report of child abuse by Nevarez, (Id. ¶ 143), yet, allege no other details about this report except that Defendants failed to adequately respond to it. (See id. ¶¶ 143-44.)

In early 2012, Danny told his mother that Nevarez made Danny sit on his lap while in class and would "rub [Danny's] back, butt, and thighs, and put his hands inside Danny's pants." (Id. ¶¶ 147-48.) While doing so, Danny "would feel something hard poking from Nevarez's pants." (Id. ¶ 149.) Danny's mother reported Danny's disclosure to a Criminal Investigation Command agent, who was apparently working with the FBI to investigate Nevarez at the time. (See id. ¶¶ 134, 150, 155.) The agent allegedly told Danny's mother to keep the sexual abuse allegations quiet, (id. ¶ 156), and Danny's mother threatened to go to the media. (Id. ¶ 157.) Plaintiffs allege that Defendants retaliated against Danny's family for this threat by transferring Danny's father to a "low-level" and "menial desk job far away from Fort Bragg." (Id. ¶¶ 258-60.)

On February 21, 2012, Plaintiffs Ann and Ellen Doe met with Defendant McBroom to seek information on Defendants' supposed investigation of Nevarez (it is unclear whether Plaintiffs refer here to the criminal investigation or a separate internal investigation). (See id. ¶¶ 158-59.) McBroom allegedly told them it was the first she had heard of any sexual abuse allegations against Nevarez, yet Plaintiffs also allege that McBroom declined to comment further due to an ongoing investigation. (See id. ¶¶ 162-63.)

On February 23, 2012, Adam's father informed his commanding officer of Nevarez's abuse, and he referred Adam's father to a social worker at Womack Army Medical Center. (Id. ¶ 165.) Plaintiffs Ann and Ellen Doe then met with that social worker and disclosed Nevarez's abuse of their sons. (Id. ¶ 166.) The social worker allegedly "blamed the victims" for the abuse and accused Adam's mother of having a "vendetta against Coleman." (Id. ¶¶ 167-68.) The social worker nonetheless said that she would investigate the matter but did not provide any treatment information, which Plaintiffs allege she was legally obligated to do. (Id. ¶ 169-70.)

In early March 2012, Defendants held a meeting for the parents of those children allegedly abused by Nevarez, which Adam's and Wyatt's parents attended. (Id. ¶ 172.) The unidentified government representatives at the meeting asserted that they first learned of Nevarez's abuse from Wyatt's mother in November 2011. (Id. ¶ 174.) Adam's mother told the representatives that she had reported Adam's abuse in October 2011. (Id. ) On March 13, 2012, Defendants sent a letter to parents regarding Nevarez's abuse. (Id. ¶¶ 177-78.) The letter stated that school officials stopped calling Nevarez to substitute "[i]immediately upon notification of the initial allegation." (Id. ¶¶ 177-78.) Plaintiffs allege that Defendants in fact waited "almost a month [until November 2011] after the initial report [in October 2011] before dismissing Nevarez and another four months [until March 2012] before barring him from the base." (Id. ¶ 179). That delay, Plaintiffs continue, "enabled Nevarez to continue to abuse children ... on the base," (id. ¶ 180), and "undermined the investigation and the requirement to provide prompt and comprehensive assessment and treatment." (Id. ¶ 181.)

Prior to a March 16, 2012 town hall meeting at Pope Elementary, Defendants allegedly "notified Robby's parents of Nevarez's sexual crimes against their son." (Id. ¶ 197.) Plaintiffs allege that Defendants assigned Nevarez to work with Robby after they were notified of Nevarez's abuse. (Id. ) Plaintiffs allege that Nevarez took advantage of his position as Robby's parapro to "continuously and repeatedly stroke and rub Robby's penis, back, thighs, legs, and other parts of his body." (Id. ¶ 194.) Plaintiffs do not specifically allege when Nevarez abused Robby.

Defendants Sicinski and Marsh attended the March 16, 2012 town hall meeting at Pope Elementary. (Id. ¶ 184.) Sicinski "admitted that a November 8, 2011 report on Nevarez's sexual abuse of children sat on his desk for three months without being read." (Id. ¶ 186.) Parents were told that they should contact Womack Army Medical Center's Office of Social Work if they were concerned that their child might have been sexually abused. (Id. ¶ 188.)

In or after mid-March 2012, one of Danny's classmates informed his mother that he "had witnessed the sexual abuse of Danny and other students." (See id. ¶ 203.) Plaintiffs allege that "[s]everal children interviewed during [an] investigation stated that they observed Nevarez either following or pulling boys into the school bathroom." (Id. ¶ 206.) Plaintiffs allege that Defendants McBroom and Coleman knew that other teachers allowed Nevarez's conduct. (Id. ¶ 207.)

On March 23, 2012, Defendants notified parents at all Fort Bragg schools where Nevarez had previously taught that there was an ongoing investigation into allegations of sexual abuse by "an unnamed substitute teacher." (Id. ¶ 208.) Defendant Sicinski signed the letter, which contained commitments regarding treatment, care, and counseling for victims. (Id. ¶ 209.)

On March 28, 2012, Defendants conducted an After Action Review ("AAR") of their handling of the allegations against Nevarez, the findings of which were documented in a May 3, 2012 memorandum (the "AAR Memo") prepared by Defendant Sicinski. (Id. ¶¶ 211-12.) The AAR Memo detailed Defendants' numerous shortcomings, many in violation of DoD regulations. (See, e.g., id. ¶¶ 215-16, 218, 222.) The AAR Memo identified a "reporting breakdown" on November 8, 2011 as "the primary cause of the installations' [sic] failure." (Id. ¶ 219 (quoting the AAR Memo at 2).)

On May 18, 2012, Defendants held a meeting for the sixteen families affected by Nevarez's actions. (See Am. Compl. (Doc. 39) ¶¶ 224, 229.) At that meeting, Defendant Sicinski, who left his post at Fort Bragg shortly thereafter, (id. ¶¶ 234-35), "acknowledged the widespread sexual abuse of children and regretted that the abuse occurred." (Id. ¶ 229.) The Defendants also allegedly acknowledged several of their shortcomings in preventing the sexual abuse, including insufficient monitoring of teachers and insufficient training on sexual abuse reporting and identification. (See id. ¶ 230.) During that meeting, a Government representative "addressed Counselor Coleman's failure to respond to the October 2011 report of Adam's sexual abuse." (Id. ¶ 231.) He allegedly said that DoD school policy "requires school personnel not to make a judgment about the level of abuse or whether there is abuse, but that they must report up the chain of command any indication or hint of child sexual abuse." (Id. )

In mid-2013, Timmy allegedly disclosed that Nevarez had abused him by stroking Timmy's body while he sat on Nevarez's lap. (See id. ¶¶ 265, 267.) A therapist evaluated Timmy and concluded he had been sexually abused by Nevarez. (Id. ¶ 272.) Timmy's mother contacted a social worker who advised her that "the Nevarez investigation was 'closed' and that Timmy should get counseling if there were any issues." (Id. ¶¶ 273-74, 278-79.) Plaintiffs do not specifically allege when Nevarez abused Timmy.

Plaintiffs assert that Defendants did not provide or authorize treatment for Minor Plaintiffs, including Robby, until months after Wyatt's disclosure in November 2011 and delayed in providing medical records and never provided other promised records. (Am. Compl. (Doc. 39) ¶¶ 239, 241-43, 248-51.)

2. The Investigation Report & Nevarez's Conduct at Other Schools

In late 2011, Defendants initiated a criminal investigation, which Plaintiffs assert did not result in charges against Nevarez. (Id. ¶¶ 131, 133.) Plaintiffs claim that the investigation "was intended more to shield the Defendants from civil liability than to prosecute [Nevarez]." (Id. ¶ 131.) The Plaintiffs met and communicated with the agent in charge of the criminal investigation in November 2011 and December 2011 and were allegedly told to keep quiet about the investigation and Nevarez's abuse. (See Id. ¶¶ 134-39.) As part of the investigation, Wyatt and Adam were interviewed at the Child Advocacy Center in late 2011. (Id. ¶ 140.) Yet, a social worker allegedly did not review Wyatt's interview and did not contact Wyatt's mother until March 2012. (See id. ¶ 171.) Plaintiffs allege the criminal investigation took over two years, that Defendants did not seek to indict Nevarez, refused to offer Plaintiffs an explanation for not doing so, and that the "United States Attorney's Office intentionally failed to conduct a thorough, professional investigation ...." (Id. ¶¶ 290-92.) Plaintiffs further allege that Defendants failed to confer with victims' parents about an ongoing criminal investigation in violation of 18 U.S.C. § 3771. (Id. ¶ 293.)

Plaintiffs allege several facts gathered from the Investigation Report concerning Nevarez's conduct at other schools. In 2006, Nevarez was accused of similar sexual abuse while working at Hoke County High School in North Carolina. (See id. ¶ 46.) In January or February 2011, Nevarez " 'hugged students, targeted kids with disabilities, [and] stared at girl's [sic] behinds' " at Fort Bragg's Irwin Elementary School. (Id. ¶ 52.) Based on these facts, Plaintiffs allege that Defendants "knew about Nevarez's sexual abuse ... as early as January or February 2011, when an Irwin school student reported [Nevarez's] inappropriate behavior to the school teacher and principal." (Id. ¶ 221.) A Fort Bragg student also reported at an unalleged time that Nevarez pulled kids into bathrooms, touched their butts and penises, and set students on his lap. (Id. ¶ 54.) Plaintiffs allege that the student told his teacher and principal about this conduct, but that they, along with other school employees, failed to report these incidents to officials at the time they occurred, in violation of federal and state law and DoD regulations. (Id. ¶¶ 52-54.)

3. Defendants' Alleged Duties

Plaintiffs allege that Defendants voluntarily assumed several duties and were subject to others imposed by the DoD regulations and a federal statute, 42 U.S.C. § 13031. (Am. Compl. (Doc. 39) ¶ 37.) Specifically, Plaintiffs allege that Defendants had a duty to prevent and protect students from sexual abuse, (id. ¶ 37.A); a duty to report child sexual abuse, (id. ¶ 37.B); a duty to identify, investigate, and treat victims of child sexual abuse, (id. ¶ 37.C); and a duty to conduct background checks and train employees about child sexual abuse, (id. ¶ 37.D).

Plaintiffs allege that, if Defendants had conducted a thorough background check or subjected Nevarez to line-of-sight supervision, the sexual abuse would not have occurred. (Id. ¶ 51.) Plaintiffs also allege that school officials failed to adequately train school personnel in violation of DoD regulations, (id. ¶ 232), and that the Government "failed to provide education programs to children of Fort Bragg schools, including [Minor Plaintiffs], on understanding and acting to prevent themselves from sexual abuse." (Id. ¶ 234.) Plaintiffs also allege that Defendants breached their duty, as promised to Plaintiffs in the March 23, 2012 letter, to provide treatment, care and counseling to victims. (Id. ¶¶ 209, 238.) Plaintiffs generally allege that Defendants' breaches of these duties owed to Minor Plaintiffs proximately caused Minor Plaintiffs' injuries, including symptoms of severe sexual abuse. (Id. ¶¶ 14, 43.)

C. Claims for Relief

Plaintiffs allege ten claims for relief, six against the Government and four against the Individual Defendants. Plaintiffs allege that the Government is generally liable to them under the Federal Tort Claims Act ("FTCA") and North Carolina law. (Id. at 53.) In Claim I, Plaintiffs allege that the Government breached its alleged duty to protect from, investigate, and remediate Nevarez's sexual abuse given a reasonably foreseeable risk. (Id. ¶¶ 298-04.) In Claims II-IV, Plaintiffs allege common law negligence against the Government for failure to protect, report, investigate, and provide treatment under three theories: a voluntarily assumed duty (Claim II), a special duty (Claim III), and a duty arising out of a special relationship (Claim IV). (Id. ¶¶ 305-32.) In Claim V, Plaintiffs allege negligence per se and, in Claim VI, Plaintiffs bring a premises liability claim. (Id. ¶¶ 333-49.)

Plaintiffs allege that the Individual Defendants are liable to them for violating their Fifth Amendment substantive due process right to bodily integrity. (See ¶¶ 358, 371, 379, 387.) Claims VII-X are Bivens claims, under theories of danger creation, (id. ¶¶ 357-69 (Claim VII)); failure to screen or supervise, (id. ¶¶ 370-77 (Claim VIII)); failure to terminate, (id. ¶¶ 378-85 (Claim IX)); and failure to train, (id. ¶¶ 386-92 (Claim X)).

II. THE GOVERNMENT'S MOTION TO DISMISS

The Government has moved to dismiss Claims I-VI pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Doc. 40.) The Government contends that this court lacks subject matter jurisdiction over Claims I-VI because the FTCA's intentional torts exception bars those claims. See 28 U.S.C. § 2680(h) ; (United States' Br. in Supp. of Mot. to Dismiss ("Gov't Br.") (Doc. 41) at 1) . Alternatively, the Government contends that, even if this court has jurisdiction, Plaintiffs fail to state a claim upon which relief can be granted because the Government only owed Minor Plaintiffs a duty of ordinary care to protect them from foreseeable harm, and Nevarez's abuse was not reasonably foreseeable. (Id. at 24.)

A. 12(b)(1) Legal Standard

Under Federal Rule of Civil Procedure 12(b)(1), a plaintiff must prove by a preponderance of the evidence the existence of subject matter jurisdiction. See Demetres v. E.W. Constr., Inc., 776 F.3d 271, 272 (4th Cir. 2015). A defendant may challenge subject matter jurisdiction factually or facially. See Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009). Here, the Government facially challenges subject matter jurisdiction. (See Gov't Br. (Doc. 41) at 8.) In a facial challenge, a defendant asserts that the allegations, taken as true, are insufficient to establish subject matter jurisdiction. See Kerns, 585 F.3d at 192. The court then effectively affords a plaintiff " 'the same procedural protection as he would receive under a Rule 12(b)(6) consideration," taking the facts as true and denying the Rule 12(b)(1) motion if the complaint "alleges sufficient facts to invoke subject matter jurisdiction." Id. (quoting Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982) ).

B. 12(b)(6) Legal Standard

To survive a Rule 12(b)(6) motion, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim is plausible on its face if "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable" and demonstrates "more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 556-57, 127 S.Ct. 1955 ). When ruling on a motion to dismiss, this court accepts the complaint's factual allegations as true. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Further, this court liberally construes "the complaint, including all reasonable inferences therefrom, ... in plaintiff's favor." Estate of Williams-Moore v. All. One Receivables Mgmt., Inc., 335 F.Supp.2d 636, 646 (M.D.N.C. 2004) (citation omitted). This court does not, however, accept legal conclusions as true, and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.

C. The FTCA

As a sovereign, the United States and its agencies are immune from suit, absent a waiver of that immunity. F.D.I.C. v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). A plaintiff bears the burden of demonstrating a waiver of that immunity and also that an exception to the waiver does not apply; if a plaintiff fails to meet that burden, then the court lacks subject matter jurisdiction and must dismiss the suit. See Welch v. United States, 409 F.3d 646, 651 (4th Cir. 2005).

Plaintiffs allege that this court has jurisdiction under the FTCA, which creates a limited waiver of the Government's sovereign immunity. In that regard, the FTCA is strictly construed, and all ambiguities are resolved in favor of the United States. Robb v. United States, 80 F.3d 884, 887 (4th Cir. 1996). The FTCA provides that:

[T]he district courts ... shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages ... for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

28 U.S.C. § 1346(b)(1). The FTCA's waiver of immunity only applies in negligence actions against the Government where the Government, "if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1). Here, that law of the place is North Carolina.

Even if a claim meets § 1346(b)(1)'s requirements, the claim might be barred by an exception to the FTCA's waiver of immunity. One of those exceptions, the intentional tort exception, provides that the FTCA's waiver of sovereign immunity does not apply to any claim arising out of assault or battery. 28 U.S.C. § 2680(h). Here, that means that, if Plaintiffs' claims against the Government arise out of Nevarez's sexual assault or battery of Minor Plaintiffs, then those claims are barred by the intentional tort exception.

To establish that their claims against the Government did not arise out of Nevarez's intentional torts, Plaintiffs must plausibly allege that the Government negligently breached a duty imposed upon it that was "entirely independent" of Nevarez's employment status and that the breach "allowed a foreseeable assault and battery to occur." Sheridan I, 487 U.S. at 401, 108 S.Ct. 2449. Allegations of negligent supervision, however, will not establish FTCA liability "because the United States owes no general duty to the public to supervise its employees or agents with care." Sheridan v. United States, 969 F.2d 72, 75 (4th Cir. 1992) (" Sheridan II") (citation and internal quotation marks omitted); see also Sheridan I, 487 U.S. at 406, 108 S.Ct. 2449 (Kennedy, J. concurring) ("To determine whether a claim arises from an intentional assault or battery and is therefore barred by the exception, a court must ascertain whether the alleged negligence was the breach of a duty to select or supervise the employee-tortfeasor or the breach of some separate duty from the employment relation.").

D. 12(b)(1) Analysis

The Government argues first that the FTCA's intentional torts exception bars Plaintiffs' claims against it, because the claims reduce to negligent supervision claims precluded by Sheridan II. (See Gov't Br. (Doc. 41) at 11-13.) Second, the Government argues that that the Government owes no duty to Plaintiffs under North Carolina law that is entirely independent of Nevarez's employment. (See id. at 14-16.)

Plaintiffs argue that Government employees breached duties entirely independent of Nevarez's employment status through their own negligent acts and omissions, including those imposed by North Carolina law. (See Pls.' Opp'n Br. (Doc. 46) at 7-8.) Plaintiffs contend that the Complaint's negligent hiring, supervision, and retention allegations are limited to the Bivens claims against Individual Defendants. (See id. at 10.) Plaintiffs also argue that "the mere existence of negligent hiring, supervision, and retention" allegations does not preclude FTCA claims grounded in independent duties. (Id. )

Both parties have meritorious 12(b)(1) arguments. The Complaint is littered with negligent hiring, supervision, or retention allegations supporting Plaintiffs' claims against the Government, even if not styled as such, and those claims are barred by the intentional tort exception under Sheridan II. See 969 F.2d at 75. For example, Plaintiffs allege that the Government breached a duty to train personnel on how to prevent, identify, and treat child sexual abuse. (Am. Compl. (Doc. 39) ¶¶ 307, 315, 327, 335.) Contrary to Plaintiffs' assertion that the negligent hiring and supervision claims are limited to the Bivens claims, these allegations are explicitly contained in Plaintiffs' third, fourth, and fifth claims for relief against the Government. Further, the court agrees with the Government that Plaintiffs attempt to premise claims on the Government's failure to abide by the DoD regulations, "is simply to assert that [DoDEA] employees were not properly supervised." Sheridan II, 969 F.2d at 75 ; (see Gov't Br. (Doc. 41) at 15). In addition, these DoD regulations, by their very nature, do not apply to non-military families and personnel or a private person in North Carolina, let alone a school. See, e.g., LaFrancis v. United States, 66 F.Supp.2d 335, 341 (D. Conn. 1999) ("[T]he services of the FAP were only available to Navy personnel and their immediate families; if the plaintiff had been married to a civilian, she would not have been eligible to participate in the FAP.") While the FTCA caselaw dictates that courts should look to similar or analogous state law duties as those imposed by federal regulations, see, e.g., Florida Auto Auction of Orlando, Inc. v. United States, 74 F.3d 498, 502 (4th Cir. 1996), Plaintiffs have only attempted to analogize these DoD regulations to an assumption of the duty claim under North Carolina law. (See Pls.' Opp'n Br. (Doc. 46) at 20.) But that theory of liability, i.e., relying on the gratuitous promulgation of Army regulations, was foreclosed by the Fourth Circuit's decision in Sheridan II. See 969 F.2d at 75 ("To premise a claim on failure to follow these regulations, with nothing more, is simply to assert that naval employees were not properly supervised."

). To the extent that Plaintiffs' claims against the Government allege negligent hiring, supervision, retention, or training, those claims will be dismissed. To the extent Plaintiffs' remaining claims are premised on duties created by the DoD regulations, the court finds them to be barred by the intentional tort exception and the FTCA's private-person principle, and they will be dismissed.

Plaintiffs are correct, however, that the mere presence of negligent supervision allegations precluded by the intentional tort exception does not foreclose all of their claims. For example, even after Sheridan I and Sheridan II a general state law assumption of the duty negligence theory can support an FTCA claim. Sheridan II, 969 F.2d at 74 (noting that plaintiffs dropped their claim predicated on the conduct of the three corpsmen, i.e., abandoning a drunk corpsman possessing a rifle without notifying authorities, which the Supreme Court had suggested could form a state law duty independent of the tortfeasor's employment). Stated another way, notwithstanding the DoD regulations, the issue remains "whether a private person could be held liable in North Carolina if he or she were to commit the acts alleged in the Complaint ... by the Government." Lumsden v. United States, 555 F.Supp.2d 580, 587 (E.D.N.C. 2008).

In Sheridan I, the Supreme Court specifically stated that "[t]he negligence of other Government employees who allowed a foreseeable assault and battery to occur may furnish a basis for Government liability that is entirely independent of [the tortfeasor's] employment status." Sheridan I, 487 U.S. at 401, 108 S.Ct. 2449. At its core, the Complaint alleges that the Government failed to protect Minor Plaintiffs from foreseeable abuse and to report abuse when it occurred, in violation of North Carolina law and a federal reporting statute. The Complaint alleges negligence against the Government through acts and omissions of the Individual Defendants themselves, not Nevarez, and many of the allegations "cannot reasonably be read to allege that the plaintiffs are seeking relief from the Government arising from an intentional assault and battery inflicted by [Nevarez]." See Lumsden, 555 F.Supp.2d at 584. Instead, as Plaintiffs argue, Nevarez's "employment by the Government is irrelevant to [much of] the plaintiff's theory of liability." Id. (citing Sheridan I, 487 U.S. at 402, 108 S.Ct. 2449 ); (see also Pls.' Opp'n Br. (Doc. 46) at 14 (arguing that the Government's duties would apply here whether Nevarez was a teacher, volunteer, or "off-the-street vagrant").) But that is only half of the inquiry. Plaintiffs must also plausibly allege facts to satisfy the FTCA's private-person principle - i.e., that the Government could be liable to Minor Plaintiffs as a private person under North Carolina law. That private-person inquiry requires the court to determine whether Plaintiffs plausibly state a negligence claim under North Carolina law. Under North Carolina law, a defendant cannot be held liable for negligence without owing a duty to plaintiff, breaching that duty, and proximately causing an injury.

Stein v. Asheville City Bd. of Educ., 360 N.C. 321, 328, 626 S.E.2d 263, 267 (2006) ).

This court therefore turns to whether the Complaint plausibly establishes a duty owed by the Government to Minor Plaintiffs under any of Plaintiffs' six theories of negligence under North Carolina law. See Durden v. United States, 736 F.3d 296, 302 (4th Cir. 2013) ; see also Rivanna Trawlers Unlimited v. Thompson Trawlers, Inc., 840 F.2d 236, 239 (4th Cir. 1988) (citing Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 90 L.Ed. 939 (1946) ("[W]hen the contested basis for jurisdiction is also an element of the plaintiff's federal claim, the claim should not be dismissed for lack of subject matter jurisdiction.").) Plaintiffs' theories essentially fall into two categories: those premised on a duty of ordinary care to prevent foreseeable harm - which all persons in North Carolina owe to each other, and those premised on a heightened duty of care.

E. 12(b)(6) Analysis

In analyzing each alleged duty in the FTCA context, this court's job is to predict how the Supreme Court of North Carolina would rule on any disputed state law questions if no controlling precedent exists. See Menard v. United States, No. 4:15-CV-160-D, 2016 WL 4258978, at *3 (E.D.N.C. Aug. 10, 2016) (citing Twin City Fire Ins. Co. v. Ben Arnold-Sunbelt Beverage Co., 433 F.3d 365, 369 (4th Cir. 2005) ). In predicting how the North Carolina Supreme court might decide an issue, this court also " 'consider[s] lower court opinions, treatises, and the practices of other states.' " Menard, 2016 WL 4258978, at *3 (quoting Twin City Fire Ins., 433 F.3d at 369 ). This court " 'follow[s] the decision of an intermediate state appellate court unless there is persuasive data that the highest court would decide differently.' " Menard, 2016 WL 4258978, at *8 (quoting Town of Nags Head v. Toloczko, 728 F.3d 391, 397-98 (4th Cir. 2013) ).

1. Claim I: Breach of Duty to Protect, Investigate, and Remediate Given a Reasonably Foreseeable Risk; Claim VI: Premises Liability

In their first claim for relief, Plaintiffs allege breach of a duty to protect, investigate, and remediate given a reasonably foreseeable risk. (Am. Compl. (Doc. 39) ¶¶ 298-04.) Plaintiffs allege that the Government knew or had reason to know that Nevarez was sexually abusing Minor Plaintiffs, and would continue to do so, because:

(i) Nevarez had a criminal background; (ii) Danny refused to attend school; (iii) Danny's mother reported Danny's change in behavior concerning school; (iv) in October 2011, Adam and his mother reported that Nevarez sexually abused Adam; and (v) in November 2011, Wyatt and his mother reported that Nevarez sexually abused Wyatt.

(Id. ¶ 299.) The parties agree that the Government owed Minor Plaintiffs a duty to exercise ordinary care to protect them only from foreseeable harm, which North Carolina law imposes upon all persons. See Fussell v. N.C. Farm Bureau Mut. Ins. Co., 364 N.C. 222, 226, 695 S.E.2d 437, 440 (2010) ; see also James v. Charlotte-Mecklenburg Bd. of Educ., 60 N.C. App. 642, 648, 300 S.E.2d 21, 24 (1983) ("[F]oreseeability of harm ... is the test of the extent of the teacher's duty ....").

In Plaintiffs' sixth claim for relief, a premises liability claim, they allege that the Government, as "occupant or possessor" of Pope Elementary: (i) owed "all occupants a reasonable duty of care, including the duty to protect elementary school-aged students from reasonably foreseeable harms;" (ii) had a "special relationship with the Plaintiffs because of their status as elementary school students," and (iii) "breach[ed] its duty to care for the premises." (Am. Compl. (Doc. 39) ¶¶ 344, 346, 349.) To the extent that Plaintiffs allege that their sixth claim for relief is based on a special relationship, it will be dismissed for the reasons discussed herein, see infra at 603-05. To the extent that Plaintiffs generally assert a premises liability claim based on the Government's duty to those who enter the premises, the viability of that claim turns on the foreseeability of Nevarez's abuse. See Durden, 736 F.3d at 302 (quoting Davenport v. D.M. Rental Props., Inc., 217 N.C. App. 133, 135, 718 S.E.2d 188, 189-90 (2011) ("In North Carolina, 'a landlord has a duty to exercise reasonable care to protect his tenants from third-party criminal acts that occur on the premises if such acts are foreseeable.' ").) The duty of reasonable care varies depending on the circumstances, including the type of business and activities involved. See Martishius v. Carolco Studios, Inc., 355 N.C. 465, 473-74, 562 S.E.2d 887, 892-93 (2002) (citations omitted). Foreseeability is therefore the key issue as to Plaintiffs' first and sixth claims.

A plaintiff can establish foreseeability by plausibly alleging that "the defendant might have foreseen that some injury would result from his or her act or omission, or that consequences of a generally injurious nature might have been expected." Hart v. Curry, 238 N.C. 448, 449, 78 S.E.2d 170, 170 (1953) (citations omitted). As the Fourth circuit explained in Durden, foreseeability under North Carolina law can be established by knowledge of a specific threat against an individual or through evidence of the tortfeasor's prior criminal activity. Durden, 736 F.3d at 302 (citing Connelly v. Family Inns of Am., Inc., 141 N.C. App. 583, 588, 540 S.E.2d 38, 41 (2000) ; Davenport, 217 N.C. App. at 138, 718 S.E.2d at 191 ). The location, type, and amount of prior criminal activity are especially probative factors. Durden, 736 F.3d at 302 (citing Connelly, 141 N.C. App. at 588, 540 S.E.2d at 41 ).

This court finds that Nevarez's alleged criminal background, Danny's refusal to attend school in the spring of 2011, and Danny's mother's meetings with a social worker and then-Principal Grim in June 2011 do not plausibly establish that Nevarez's subsequent abuse was foreseeable.

Plaintiffs allege that Nevarez was accused of sexually abusing children prior to his employment at Pope Elementary and that his background "contained indicators of possible inappropriate student-teacher interactions." (Am. Compl. (Doc. 39) ¶ 352.) Plaintiffs further allege that the Individual Defendants failed to conduct a "proper and complete" background check by not obtaining clearance from Puerto Rico and that Defendant Marsh admitted that Defendants would not have hired Nevarez if they had obtained a background check from Puerto Rico. (Id. ¶ 353-55.) But the Government hired Nevarez after an FBI background investigation. (Id. ¶ 354.) And Plaintiffs do not allege that the Government had knowledge of an incident of child abuse in Puerto Rico. Defendant Marsh's alleged admission, in May 2012, that Nevarez's conduct in Puerto Rico would have dissuaded Defendants from hiring Nevarez, without more, is of no weight in determining what Defendants knew before Nevarez's abuse of Minor Plaintiffs and of little probative value to this court in trying to determine whether prior criminal activity was akin to that alleged here in location, type, and amount.

Plaintiffs also allege that a thorough background check "likely would have revealed" a 2006 allegation against Nevarez from Hoke County High School in North Carolina. (Id. ¶ 46-48.) But that conclusory allegation is unsupported by the Complaint itself, as the FBI conducted a background check, and Defendants received a "domestic" background check, just not clearance from Puerto Rico. (Id. ¶¶ 50, 354.)

The Investigation Report also describes inappropriate conduct by Nevarez at Fort Bragg's Irwin Elementary in January or February 2011. The allegations that Nevarez hugged students, targeted kids with disabilities, stared at girls' behinds, and spoke face-to-face with students, (id. ¶ 52), simply do not plausibly suggest knowledge of a specific threat or contribute to a consideration of prior criminal activity or future child abuse. The allegations, without more, are not reflective of criminal behavior. Plaintiffs rely on these allegations from the Investigation Report to allege that Defendants "knew about Nevarez's sexual abuse ... as early as January or February 2011." (Id. ¶ 221). This court does not find such an inference plausible. The Investigation Report also allegedly contains a statement from an unidentified Fort Bragg student that Nevarez pulled kids into bathrooms, "touch[ed] their wieners, and s[et] them on his lap." (Id. ¶ 54.) Plaintiffs allege that the student reported Nevarez's abuse to two unidentified people at an unalleged time. Plaintiffs then allege, upon information and belief, that the two unidentified persons were the unidentified student's teacher and principal, who both failed to report the matter. This student's disclosure to the two individuals could have occurred as a result of the investigation itself, making it of minimal value to a foreseeability inquiry. The court simply cannot infer one way or the other. Plaintiffs also rely on the Investigation Report to allege that Nevarez sexually molested two other Pope Elementary students in September 2011. Plaintiffs do not allege when these incidents were reported, and they too could have been reported for the first time during the criminal investigation. While these allegations are troubling, the court hesitates to rely on them to impute knowledge to Defendants of Nevarez's potentially criminal activity at the relevant time. What the Government knew after the Investigation Report in late 2011 or early 2012 is not as relevant as what it knew in 2010 through mid-2011. Understanding that Plaintiffs have limited access to relevant sources of information at this stage, including only a redacted copy of the Investigation Report, the court nevertheless declines to find that Nevarez's abuse was foreseeable based on non-criminal activity or conclusory allegations of prior criminal activity without more. See, e.g., Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citing Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 ) ("[B]are assertions devoid of further factual enhancement fail to constitute well-pled facts for Rule 12(b) (6) purposes.").

Similarly, Danny's resistance to attending school sometime in the spring of 2011, his and his mother's meeting with a social worker, and his mother's meeting with then-Principal Grim do not plausibly establish the foreseeability of Nevarez's alleged abuse of Minor Plaintiffs. In hindsight, Danny's behavior might have been indicative of sexual abuse. In North Carolina, however, the duty of ordinary care "does not require perfect prescience ...." Fussell, 364 N.C. at 226, 695 S.E.2d at 440. Plaintiffs' allegations concerning Nevarez's previous abuse at other schools state that the abuse was not reported, making it less likely that the social worker and then-Principal had any heightened suspicion of child abuse. The social worker's suspicion that Danny's behavior stemmed from Danny's father's deployment to Afghanistan, and Principal Grim's suspicion that Danny was having general behavioral issues typical of children his age, were both reasonable. (See Am. Compl. (Doc. 39) ¶¶ 65, 67.)

Plaintiffs rely primarily on Adam's October 11, 2011 disclosure to establish the Government's knowledge of a specific threat and knowledge of Nevarez's prior criminal activity. (Pls.' Opp'n Br. (Doc. 46) at 15-16.) Adam's disclosure, Plaintiffs argue, was particularly probative because the disclosure detailed abuse in the same location, of the same type, and of a sufficient amount given that it was the very same conduct that allegedly occurred immediately after Adam's disclosure. (Id. at 16-18 (citing Durden, 736 F.3d at 302 ; Connelly, 141 N.C. App. at 588, 540 S.E.2d at 41 ).)

The Government relies on the Fourth Circuit's decision in Durden to argue that Adam's disclosure does not establish foreseeability. (Gov't Br. (Doc. 41) at 27.) In Durden, the Fourth Circuit held that an Army Specialist's rape of a Fort Bragg resident was not foreseeable based on the Specialist's prior statements that he wanted to kill himself and other members of his Army unit, as well as a prior burglary and assault occurring off of the military installation. 736 F.3d at 302-04. The Fourth Circuit found that mere desires to harm others did not constitute "prior criminal activity" for foreseeability purposes. See id. at 303. The court also found that the Specialist's burglary and assault three months prior did not make the rape foreseeable because of the third foreseeability factor outlined in Connelly - the amount of prior criminal activity. Durden, 736 F.3d at 304 (citing Murrow v. Daniels, 321 N.C. 494, 501-03, 364 S.E.2d 392, 397-98 (1988) ; Connelly, 141 N.C. App. at 589, 540 S.E.2d at 42 ; Urbano v. Days Inn of Am., Inc., 58 N.C. App. 795, 798, 295 S.E.2d 240, 242 (1982) ). In Durden, plaintiff's reliance on a single incident of prior criminal activity three months prior was insufficient to "render a future attack foreseeable." 736 F.3d at 304.

Applying Durden to Adam's disclosure, the Government argues that, like the rapist's prior suicidal and homicidal expressions, "there [wa]s nothing obviously criminal in what Adam allegedly said." (Gov't Br. (Doc. 41) at 29.) At this motion to dismiss stage, this court is not convinced. Plaintiffs allege that, on October 11, 2011, Adam told Defendant Coleman that "Nevarez was touching him and making him sit on Nevarez's lap and that he did not want to attend school anymore because he was scared that Nevarez would be there and touch him again." (Am. Compl. (Doc. 39) ¶ 81.) Adam's stated fear about Nevarez to Coleman, which she allegedly disclosed to McBroom and Nevarez, plausibly establishes the Government's knowledge of a specific threat against Adam at this time. The weight and credibility to be assigned Adam's report cannot be fully assessed at this time. However, at the very least, Adam's report of uninvited touching and related conduct, coupled with Adam's alleged psychological discomfort with that contact, give rise to a plausible concern with Nevarez's physical contact with a student. Reporting the information directly to the accused teacher plausibly suggests that Defendants ignored a clear statement of potential child abuse and further ignored the potential for some type of retaliation, which Plaintiffs allege occurred. (See id. ¶¶ 98-102.)

The court also finds that Plaintiffs plausibly allege foreseeability through Adam's disclosure under the three-factor prior criminal activity framework from Connelly, applied by the Fourth Circuit in Durden. Under North Carolina law, taking indecent liberties with a student is a crime. See N.C. Gen. Stat. § 14-202.4(d)(1). "Indecent liberties" means:

(a) willfully taking or attempting to take any immoral, improper, or indecent liberties with a student for the purpose of arousing or gratifying sexual desire; or (b) willfully committing or attempting to commit any lewd or lascivious act upon or with the body or any part or member of the body of a student.

Id. A nine- or ten-year-old boy's allegation that a teacher was touching him and that he was scared to return to school because of that touching is plausibly probative of prior criminal activity. The full scope of the activity, the potential notice, and whether it was sufficient to place Defendants on notice will have to be addressed at a later stage of the proceedings. Further, as Plaintiffs reiterated at oral argument, the Complaint alleges that Adam's mother used the term sexual abuse in her discussion with Coleman and that Coleman responded that Defendants take allegations of sexual abuse seriously. (Am. Compl. (Doc. 39) ¶¶ 85, 88.) Plaintiffs allege that Coleman understood the seriousness of the disclosure, whether she and McBroom found it reasonable is not a question that can be resolved in this case at the motion to dismiss stage.

Adam's disclosure concerned abuse of the exact same type and in the exact same location as that which allegedly immediately followed Coleman's conversation with Nevarez. While a single incident of prior criminal activity (a burglary and assault) did not establish the foreseeability of a later criminal act (rape) in Durden, 736 F.3d at 304, this court does not find as a matter of law, at this juncture, that a single incident indicating child sexual abuse cannot establish the foreseeability of a subsequent act of child abuse.

This court's research suggests that courts have drawn no bright lines regarding the number and frequency of criminal incidents that will give rise to a duty to protect from foreseeable harm. The court acknowledges that caselaw from both North Carolina and other jurisdictions suggests that neither a single incident nor sporadic incidents of prior criminal activity are sufficient at various stages of the proceedings to establish foreseeability. See, e.g., Connelly, 141 N.C. App. at 589, 540 S.E.2d at 42 (one hundred instances over five years sufficient); Murrow, 321 N.C. at 501-03, 364 S.E.2d at 397-98 (one hundred instances over four-and-a-half years sufficient); Urbano, 58 N.C. App. at 798, 295 S.E.2d at 242 (forty-two instances over three years and twelve in three-and-a-half months immediately preceding alleged harm sufficient); Sawyer v. Carter, 71 N.C. App. 556, 562, 322 S.E.2d 813, 817 (N.C. Ct. App. 1984) (occasional robberies in the same general area and one at same location five years prior insufficient); Grisham v. Wal-Mart Stores, Inc., 929 F.Supp. 1054, 1058 (E.D. Ky. 1995), aff'd sub nom. Grisham v. Wal-Mart Properties, Inc., 89 F.3d 833 (6th Cir. 1996) (unpublished table decision) (citation omitted) (single act insufficient); Garner v. McGinty, 771 S.W.2d 242, 248 (Tex. App. 1989) (single act three months prior insufficient). None of these cases, however, including most importantly those North Carolina cases that the Fourth Circuit relied on in Durden - Connelly, Murrow, and Urbano, see Durden, 736 F.3d at 304 - involved child abuse. For that reason, this court does not find them particularly compelling on the foreseeability issue.

The mandatory reporting regimes in this criminal context make child abuse unique. In addition, in light of both state and federal sex offender registration requirements, see, e.g., N.C. Gen. Stat. § 14-208.5 et seq. and 34 U.S.C. § 20901 et seq., it seems reasonable to infer that sexual abuse carries a heightened risk of future crimes in comparison to other criminal conduct. The reporting and registration requirements exist in part to prevent likely recurrence. And their existence - and non-existence in other criminal contexts - evinces the significance of a single act of child abuse. This court therefore finds that Plaintiffs plausibly allege foreseeability based on Adam's disclosure.

Plaintiffs plausibly allege the Government's breach of its duty to Minor Plaintiffs as well. Plaintiffs allege that Defendant McBroom assigned Nevarez to the Minor Plaintiffs' classrooms on seventeen days after Adam's disclosure, that they assigned Nevarez to work with Robby after Adam's disclosure, and explicitly that Nevarez's abuse of Adam continued after Adam's disclosure. The court can plausibly infer from the timing of Wyatt's November 2011 disclosure and Danny's early 2012 disclosure that Nevarez abused them after Adam's disclosure. These allegations are enough to survive a motion to dismiss. See, e.g., Daniels ex rel. Webb v. Reel, 133 N.C. App. 1, 11, 515 S.E.2d 22, 29 (1999) (citation omitted) ("Ordinarily, it is a jury's province to determine issues of breach and causation.").

Plaintiffs are entitled to discovery to unearth the Government's response to Adam's disclosure, its actions and omissions in the interim between Adam's disclosure and Nevarez's removal from the base (whenever that date certain is uncovered to be), and the facts and circumstances surrounding any assignment of Nevarez to Minor Plaintiffs' classrooms or as Robby's parapro in the weeks that followed Adam's disclosure.

The Government's motion to dismiss Plaintiffs' first and sixth claims will be denied as to all Plaintiffs and as to the Government's actions beginning on October 11, 2011 and continuing thereafter.

2. Claim II: Assumption of a Duty/Good Samaritan

In their second claim for relief, Plaintiffs allege that the Government voluntarily assumed a duty to protect from, report, investigate, and treat sexual abuse. Plaintiffs allege that "a federal statute, and a series of Army regulations, policy statements, memoranda, and reports have imposed on the Defendants a duty to prevent, report, investigate, identify, and treat children who are sexually abused in DoDEA schools," (Am. Compl. (Doc. 39) ¶ 36), and that the Government "assumed these duties and engaged in specific tasks and provided specific services in order to fulfill these mandates." (Id. ) Plaintiffs argue that their second claim for relief states a claim under North Carolina's Good Samaritan doctrine, imposing analogous duties to the DoD Regulations. (Pls.' Opp'n Br. (Doc. 46) at 20.)

An agency of the United States must perform a task it has voluntarily undertaken with due care. Rogers v. United States, 397 F.2d 12, 14 (4th Cir. 1968). But the FTCA's law-of-the-place requirement asks whether the United States assumed a duty to act with reasonable care in accordance with North Carolina's Good Samaritan doctrine, if one exists.

North Carolina courts have recognized a Good Samaritan duty. Edwards v. GE Lighting Sys., Inc., 200 N.C. App. 754, 758, 685 S.E.2d 146, 149 (2009) ; see also Davidson v. Univ. of N.C. at Chapel Hill, 142 N.C. App. 544, 558, 543 S.E.2d 920, 929 (2001) (citing Pinnix v. Toomey, 242 N.C. 358, 362, 87 S.E.2d 893, 897 (1955) ) ("The voluntary undertaking theory has been consistently recognized in North Carolina, although it is not always designated as such."). In North Carolina, "under certain circumstances, one who undertakes to render services to another which he should recognize as necessary for the protection of a third person ... is subject to liability to the third person, for injuries resulting from his failure to exercise reasonable care in such undertaking." Edwards, 200 N.C. App. at 758, 685 S.E.2d at 149.

Plaintiffs cite Boles (a case applying Virginia law) as an example of a case where a court allowed an assumption of duty claim. (Pls.' Opp'n Br. (Doc. 46) at 12 (citing Boles v. United States, 3 F.Supp.3d 491, 501 (M.D.N.C. 2014) ).) There, Coast Guard employees assisted a colleague with mental health issues in storing his firearms in the Coast Guard Armory, and, in so doing, allegedly assumed a duty to act with reasonable care in that undertaking. Boles, 3 F.Supp.3d at 505-06. The plaintiff alleged that the Coast Guard employees breached their assumed duty when they later assisted the tortfeasor in removing his firearms from the Coast Guard's Armory in violation of a protective order (that one of them knew about) and failed to warn the tortfeasor's wife, ultimately leading to the plaintiff's injury. Id. at 505. The court in Boles looked to the Restatement (Second) of Torts § 324A, which Virginia courts apply in formulating Virginia's assumption of duty doctrine, and found that the plaintiff plausibly alleged that he was in the class of persons who could be harmed upon the Coast Guard employees' return of the firearms. Id. at 507.

In Edwards, the North Carolina Court of Appeals implied that North Carolina's voluntary assumption of the duty was derived from the Restatement (Second) of Torts § 324A. See 200 N.C. App. at 758, 685 S.E.2d at 149. There is some dispute within the North Carolina courts, however, as to the Restatement's authority. Compare Edwards, 200 N.C. App. at 758, 685 S.E.2d at 149 ; Quail Hollow E. Condo. Assoc. v. Donald J. Scholz Co., 47 N.C. App. 518, 522-24, 268 S.E.2d 12, 15-17 (1980) (relying upon the Restatement (Second) of Torts § 324A in finding a voluntarily assumed duty to protect a third party), with Cassell v. Collins, 344 N.C. 160, 163, 472 S.E.2d 770, 772 (1996) (citation omitted) ("We reemphasize yet again that the Restatement of Torts is not North Carolina law."), abrogated on other grounds by Nelson v. Freeland, 349 N.C. 615, 507 S.E.2d 882 (1998) ; Hedrick v. Rains, 344 N.C. 729, 729, 477 S.E.2d 171, 172 (1996) ("[W]e note with disapproval the citation of the Restatement (Second) of Torts as authority. Except as specifically adopted in this jurisdiction, the Restatement should not be viewed as determinative of North Carolina law."). This court is currently unaware of any decision by the North Carolina Supreme Court explicitly adopting Sections 323 or 324A of the Restatement of Torts. See Dawkins v. United States, 226 F.Supp.2d 750, 755 (M.D.N.C. 2002) ("[T]he North Carolina Supreme Court has not recognized a tort law duty based upon Section 324A of the Restatement of Torts."). And in light of the North Carolina Supreme Court's admonitions in Cassell and Hedrick, this court finds it unlikely that the North Carolina Supreme Court would impose the Restatement's formulation of the Good Samaritan duty on a private person under the circumstances here.

Comparing Lumsden and Durden, both FTCA cases where federal courts applied North Carolina law, is helpful here. In Lumsden, a Marine corpsman's vehicle was impounded after he was caught inhaling ether. 555 F.Supp.2d at 582. Marine corpsmen later returned the vehicle to him, and the corpsman then inhaled an intoxicating amount of ether remaining in the vehicle, drove his vehicle, and caused an accident, killing one. Id. The court in Lumsden framed its inquiry as to the plaintiff's general negligence theor