United States District Court, M.D. Tennessee, Nashville Division
KIMBERLY CLINE, individually, and on behalf of her minor child, E.C., Plaintiffs,
UNITED STATES, Defendant.
MEMORANDUM AND ORDER
ALETA A. TRAUGER, District Judge.
Pending before the court is a Motion to Dismiss the Amended Complaint (Docket No. 25) filed by the defendant, the United States of America, to which the plaintiffs have filed a Response in opposition (Docket No. 30). For the reasons discussed herein, the motion to dismiss will be granted without prejudice.
On April 7, 2014, this court granted without prejudice the government's Motion to Dismiss the plaintiffs' original Complaint. (Docket No. 21.) The court's April 7, 2014 Order permitted the plaintiffs a period of 14 days to amend their Complaint. On April 18, 2014, the plaintiffs filed an Amended Complaint, which the government has moved to dismiss.
I. Allegations of the Amended Complaint
The factual allegations of the Amended Complaint are similar to the factual allegations of the original Complaint, which were detailed in the court's April 7, 2014 opinion, familiarity with which is assumed. For purposes of context, the court will briefly summarize the events underlying the plaintiffs' claims.
In 2007, plaintiff Kimberly Cline ("KC"), who is the mother of plaintiff EC, a minor child born in 2001, married Joshua Matthew Cline ("JMC"). At the time, JMC was an active duty soldier in the United States Army. KC, JMC, and EC reside in Clarksville, Tennessee.
According to the Amended Complaint, around March 2008, the Army and other federal agencies began to investigate JMC for possession and distribution of child pornography. Around the same time, on March 1, 2008, JMC returned to Tennessee from Iraq, where he had been deployed, for a two-week rest and relaxation tour ("R&R"). During his R&R, JMC created and produced pornographic material, including videos and photographs of himself sodomizing and raping EC, who was six years old. JMC returned to Iraq around March 19, 2008.
On or around September 29, 2008, the Army's Criminal Investigation Division ("CID") interviewed JMC regarding his suspected distribution and possession of child pornography. The plaintiffs allege that, during that interview, JMC admitted that he possessed child pornography and that he was specifically interested in pornography involving children between seven and ten years old. According to the Amended Complaint, the CID specifically asked JMC about EC during the September 29, 2008 interview.
The plaintiffs allege that, following the interview and JMC's admission related to child pornography, CID took no action against JMC and did not contact KC, law enforcement in Tennessee, the Tennessee Department of Children's Services ("DCS"), or any authority. Around October 2008, however, the Army confiscated JMC's computer, which contained photographs and videos of JMC raping and sodomizing EC.
The plaintiffs allege that, around October 3, 2008, JMC called KC from Iraq and alerted her that she would be receiving calls about an Army investigation of JMC. JMC instructed KC "not to answer" questions because he had hired an attorney, and KC was entitled to spousal privilege. JMC did not inform KC about the nature of the investigation. Around October 15, 2008, the Army contacted KC. Initially, KC refused to meet with the Army because of JMC's instruction to keep quiet and assert spousal privilege. The plaintiffs allege that, upon this initial communication, the Army and CID did not inform or warn KC, EC, or any law enforcement in Tennessee regarding the nature of the investigation or any suspected danger that JMC posed to EC.
Around October 19, 2008, CID again contacted KC and threatened that, if she did not meet with Army Family Services, KC would face criminal prosecution. The next day, KC met with local personnel, including Army Family Services and CID, at Fort Campbell Army base. During the October 20, 2008 meeting, KC informed the government that she knew that an investigation was taking place and that JMC had told her that it was a mistake. According to the Amended Complaint, the government and its agents did not permit KC to review the file regarding the CID's investigation of JMC and did not inform her that JMC was being investigated for possession of child pornography. The plaintiffs further allege that KC asked the Army personnel if JMC should be allowed around EC and, in response, all government employees assured KC that the investigation had nothing to do with EC. The agents did, however, instruct "[KC] to limit JMC's interaction with Plaintiff EC." The plaintiffs allege that KC "explicitly and directly asked personnel for Defendant's agencies, Army Services and CID, whether JMC should be allowed to return to the home and be alone with Plaintiff EC and the personnel told her that JMC returning was not a problem, only to limit his time with EC." Following the October 20, 2008 meeting, the government continued its pattern of silence and did not contact law enforcement authorities in Tennessee.
Around November 14, 2008, JMC returned to the marital home in Tennessee from his deployment in Iraq. Following his return, the Army and its employees made no action to warn KC or to contact law enforcement in Tennessee about any dangers posed by JMC to EC. Around December 6, 2008, JMC repeatedly raped and sodomized EC in the Cline family home while KC was in the hospital giving birth to a son. Following the rape, JMC attempted to sell videos and photographs that he had created in March 2008 showing his past abuse of EC.
In late January 2009, DCS employees contacted KC and threatened that, if she did not return home from work immediately, her children would be taken into state custody. When KC returned to her home, federal agents had searched her property. She was interviewed by one agent, Agent Hendrix, who informed her for the first time that the Army investigation of JMC was based on possession of child pornography. The plaintiffs allege that Agent Hendrix did not inform KC at that time that EC was a suspected victim of JMC. Over a year later, in March 2010, EC told a psychologist about her stepfather's abuse. The psychologist informed KC of her daughter's victimization.
The plaintiffs plead that the Army failed to warn KC and her daughter, as well as federal and local law enforcement, of the dangers posed by JMC when the government began its investigation in March 2008 and after JMC admitted to possession of child pornography in September 2008. They assert that such omissions were negligent, willful, deliberate, knowing, and malicious, and allege that ...