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KENNA v. UNITED STATES

May 29, 1996

JOHN W. KENNA and MARY KENNA, Plaintiffs, against UNITED STATES OF AMERICA, Defendant.


The opinion of the court was delivered by: WEXLER

 WEXLER, District Judge

 Plaintiffs John and Mary Kenna, husband and wife, bring this action against defendant United States under the Federal Torts Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq. Before the Court is defendant's motion for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure seeking dismissal of plaintiffs' amended complaint. For the reasons below, the motion is granted.

 I. BACKGROUND

 The facts as alleged in the amended complaint *fn1" can be summarized briefly as follows. Plaintiff John Kenna ("Kenna") was employed as a security guard by United International Investigative Services ("UIIS") and assigned to the Internal Revenue Service ("IRS") facility located at 1040 Waverly Avenue, Holtsville, New York, pursuant to an agreement between UIIS and the IRS, whereby UIIS provided security guards at that location. On February 11, 1992, Kenna was assaulted by an IRS employee, Kerry P. Hasapidis ("Hasapidis"). Plaintiffs do not indicate the position or job held by Hasapidis with the IRS.

 According to plaintiffs, the IRS hired persons with known "mental defects/deficiencies" and such persons were "dangerously sick, mentally and morally." Amended Complaint PP 8, 10. Hasapidis was such a person. Id. The IRS knew or should have known that Hasapidis had a violent history requiring the use of medication, that Hasapidis was under the influence of psychotropic medications during his employment, and that his use of such medications required proper monitoring, supervision and/or control. Id. PP 11-14. Plaintiffs further allege that defendant was negligent in "failing to warn those working with [Hasapidis] about his violent propensities," "failing to control and monitor the medications of [Hasapidis]," and "failing . . . to exercise due care and caution for the safety of its employees and other workers." Id. PP 18-19, 22.

 Kenna's wife, Mary Kenna, brings a claim against defendant for loss of her husband's services, society and consortium.

 II. DISCUSSION

 A complaint should not be dismissed "unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claims which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Maggette v. Dalsheim, 709 F.2d 800, 803 (2d Cir. 1983). Moreover, on a motion to dismiss, the allegations in the complaint must be accepted as true. Cruz v. Beto, 405 U.S. 319, 322, 31 L. Ed. 2d 263, 92 S. Ct. 1079 (1972) (per curiam). This Court considers defendant's motion with these principles in mind.

 Plaintiffs argue that their claims do not fall within the § 2680(h) exception, as the "attack did not arise from an assault and battery." Amended Complaint P 21. Rather, according to plaintiffs, their claims are based on defendant's alleged negligent "hiring," "supervision," "retention," and "employment" of Hasapidis. Plaintiffs' Memorandum of Law in Opposition to Defendant's Motion for Judgment on the Pleadings ("Pls. Mem."), at 1, 3. As noted above, plaintiffs cast defendant's negligence as "failure to warn those working with [Hasapidis] about his violent propensities," "failure to control and monitor the medications of [Hasapidis]," and "failure . . . to exercise due care and caution for the safety of its employees and other workers." Amended Complaint PP 18-19, 22. Plaintiffs further characterize defendant's negligence as, among other things, a failure to ascertain Hasapidis' violent propensities and the effects on Hasapidis of certain medications or the lack of certain medications. Pls. Mem. at 5. Despite these characterizations, plaintiffs' claims do not avoid the reach of § 2680(h).

 The Supreme Court addressed § 2680(h) in United States v. Shearer, 473 U.S. 52, 87 L. Ed. 2d 38, 105 S. Ct. 3039 (1985). In Shearer, the plaintiff, a survivor of a serviceman who was murdered by a fellow serviceman, sued the United States claiming that the Army's negligence failed to prevent the murder. Id. at 53. More particularly, the plaintiff alleged that although the Army knew that the murderer was dangerous, it "'negligently and carelessly failed to exert a reasonably sufficient control over' him and 'failed to warn other persons that he was at large.'" Id. at 54. The Supreme Court dismissed the plaintiff's claim based upon the Feres doctrine, which bars a claim by a serviceman under the FTCA for injuries which "arise out of or are in the course of activity incident to service." Id. at 57-59. However, Chief Justice Burger, in a portion of an opinion joined by three other Justices, concluded that the plaintiff's claim was barred by the § 2680(h) exception for assault and battery:

 
Respondent cannot avoid the reach of § 2680(h) by framing her complaint in terms of negligent failure to prevent the assault and battery. Section 2680(h) does not merely bar claims for assault or battery; in sweeping language it excludes any claim arising out of assault or battery. We read this provision to cover claims like respondent's that sound in negligence but stem from a battery committed by a Government employee.

 Id. at 55. Four other Justices declined to join in this portion of the opinion, but did not dissent from it, and concurred in disposing of the case based on the Feres doctrine. The remaining ...


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