IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-31080
Summary Calendar
CARRIE STIDHAM,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 99-CV-2794-T
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March 13, 2001
Before HIGGINBOTHAM, WIENER, and BARSKDALE, Circuit Judges.
PER CURIAM:*
Carrie Stidham appeals from the district court’s grant of
the Government’s motion to dismiss or, in the alternative, for
summary judgment, in her lawsuit filed under the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-2680. At the
time of the relevant events, Stidham was a young U.S. Army
recruit. She alleged that three Army sergeants, on multiple
occasions during a period of several months, sexually assaulted
her, forced her to perform oral sex, and intentionally inflicted
emotional distress. The district court dismissed the Army as a
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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defendant, and that dismissal is not challenged. The district
court granted the government’s motion for summary judgment,
concluding that any claims relating to sexual assault or
nonconsensual sexual contact were barred by the FTCA’s exclusion,
under 28 U.S.C. § 2860(h), of claims involving “assault” and
“battery” from the FTCA’s general waiver of sovereign immunity.
The court also granted summary judgment upon a claim of
intentional infliction of emotional distress because Stidham
failed to demonstrate that the sergeants were acting within the
scope of their employment during the alleged incidents.
We review a grant of summary judgment de novo. Love v.
National Med. Enter., 230 F.3d 765, 770 (5th Cir. 2000). Summary
judgment is appropriate when, considering all of the admissible
evidence and drawing all reasonable inferences in the light most
favorable to the nonmoving party, there is no genuine issue of
material fact and the moving party is entitled to judgment as a
matter of law. FED. R. CIV. P. 56(c); Little v. Liquid Air Corp.,
37 F.3d 1069, 1075 (5th Cir. 1994)(en banc). If the moving party
meets the initial burden of showing that there is no genuine
issue, the burden shifts to the nonmoving party to produce
evidence or set forth specific facts showing the existence of a
genuine issue for trial. FED. R. CIV. P. 56(e); Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986).
Subject to several exceptions, the FTCA waives the sovereign
immunity of the United States, making it liable in tort “in the
same manner and to the same extent as a private individual under
like circumstances,” 28 U.S.C. § 2674, for certain damages
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“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); see Johnson v. Sawyer, 47 F.3d
716, 727 (5th Cir. 1995). Under 28 U.S.C. § 2680(h), however,
the FTCA shall not be applicable to “[a]ny claim arising out of
assault, battery, false imprisonment, false arrest, malicious
prosecution, abuse of process, libel, slander, misrepresentation,
deceit, or interference with contract rights.” (emphasis added).
In factual circumstances almost identical to those here, this
court has held that allegations of sexual misconduct or assault
are excludable under § 2680(h), because they amount to “assault”
or “battery.” Garcia v. United States, 776 F.2d 116, 116-17 (5th
Cir. 1985).
As for Stidham’s claim of intentional infliction of
emotional distress, to determine if they are also excluded by §
2680(h), we look to the underlying conduct upon which the claim
is based. See Truman v. United States, 26 F.3d 592, 595-96 (5th
Cir. 1994). If the underlying conduct is a tort enumerated in §
2680(h), then the claim for intentional infliction of emotional
distress is barred. Id. In Truman, we considered a claim for
intentional infliction of emotional distress stemming from sexual
harassment. We concluded that the sexual harassment alleged did
not constitute assault or battery because there was never an
“offensive contact” or “imminent apprehension of harmful or
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offensive contact.” Id. at 596. Here, by contrast, the
underlying conduct did involve offensive contact. Stidham
alleges that the sergeants compelled her to engage in sexual
intercourse with them, and perform acts of oral sex. These
constitute an “offensive contact,” and therefore the underlying
conduct upon which the intentional infliction of emotional
distress claim is predicated constitutes a tort enumerated in §
2680(h). We agree with the district court that even if the claim
could escape our reading of Truman, it would rest on intentional
conduct that would exceed the line and scope of employment under
Louisiana law.
Accordingly, the judgment of the district court is AFFIRMED.