The opinion of the court was delivered by: Judge James B. Zagel
MEMORANDUM OPINION AND ORDER
Plaintiff brings this action under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2674, for injuries arising from a series of alleged sexual assaults by a Department of Veterans Affairs ("VA") therapist. Defendant moves to dismiss, arguing that Plaintiff's claims are barred by the assault and battery provision of the FTCA, failure to comply with Illinois' health professional report requirement for medical malpractice claims, and failure to exhaust all claims at the administrative level. For the following reasons, Defendant's motion to dismiss is granted.
This case involves disturbing allegations of sexual assault committed by a government-employed therapist against her patient, Plaintiff Ronald Glade. Plaintiff, who served briefly in the military before being honorably discharged for mental health reasons, suffers from several psychological disorders, including depression, psychosis disorder, bipolar disorder and post-traumatic stress disorder. Since 1989 and continuing through 2007, Plaintiff received intensive inpatient and outpatient psychological treatment at the Veterans Administration healthcare facility in North Chicago, Illinois. At some point in late 2007, Plaintiff began seeing therapist Lisa Story, a VA employee, for counseling services. Shortly thereafter, Ms. Story allegedly represented to Plaintiff that engaging in sexual acts with her was necessary to improve his mental health. Plaintiff relied on these representations and in December 2007 began having sexual relations with Ms. Story.
On June 2, 2009, Plaintiff filed an administrative claim with the Department of Veterans affairs, alleging psychological and emotional injuries suffered from his sexual relationship with Ms. Story. The Department of Veterans Affairs declined to resolve the case and on June 24, 2010, Plaintiff filed a two-count complaint against the United States in this court, alleging sexual assault and negligent supervision. Defendant moved to dismiss, arguing that Plaintiff's claims were barred by 28 U.S.C. § 2680(h), a proviso of the Federal Tort Claims Act that limits the federal government's waiver of sovereign immunity with respect to assault and battery and other intentional torts committed by its employees. I granted Plaintiff leave to amend the complaint to resolve these deficiencies, and on December 30, 2010, he filed the instant three-count complaint.
Motions to dismiss challenge the sufficiency of a complaint, not its merits. Autry v. Northwest Premium Servs., Inc., 144 F.3d 1037, 1039 (7th Cir. 1998). For the purpose of ruling on a motion to dismiss, a court must treat all of the facts alleged in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Caldwell v. City of Elwood, 959 F.2d 670, 671 (7th Cir. 1992). To survive a motion to dismiss, a plaintiff must allege facts sufficient to state a claim for relief that is facially plausible. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim for relief is plausible if the well-pleaded facts allow a court to "infer more than the mere possibility of misconduct." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009).
"Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements" are not sufficient to state a claim. Id. at 1949. Rather, legal conclusions "must be supported by factual allegations" that "plausibly give rise to an entitlement to relief." Id. at 1950.*fn1
A. FTCA's Assault and Battery Exception
The FTCA permits a tort suit against the United States "where injury to person or property is 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." 28 U.S.C. § 1346(b). In passing the FTCA, Congress waived the U.S. government's sovereign immunity to suit for a broad range of the tortious conduct of its employees. However, 28 U.S.C. § 2680(h) preserves the U.S. government's sovereign immunity from suits "arising out of" most intentional torts, including assault, battery and deceit. 28 U.S.C. § 2680(h).
In his effort to hold Defendant liable for Ms. Story's intentionally tortious conduct, Plaintiff tries to circumvent § 2680(h)'s "arising out of" limitation by couching his claims in the lexicon of negligence actions. Count I seeks to hold Defendant liable under a theory of respondeat superior. This claim is clearly barred--"there is no respondeat superior liability under the FTCA for garden-variety intentional torts." LM v. United States, 344 F.3d 695, 700 (7th Cir. 2003). Count II seeks to hold Defendant liable under a negligent supervision theory. This is also barred. As with respondeat superior, the Seventh Circuit has treated negligent hiring, retention, and supervision claims as "arising out of" the intentional tort and therefore falling within the exception to the waiver of immunity created by § 2680(h). Id. at 700.
Count III, alleging a breach of duty based on a special relationship, has more traction. It is a basic principle of tort law that a special relationship, such as custodianship, can create duties to protect from foreseeable third-party harm. Restatement (Second) of Torts § 315(b) (1965). Illinois courts generally recognize duties created by special relationships. See Zimring v. Wendrow, 137 Ill.App.3d 847, 852 (2 Dist., 1985).*fn2 Courts have incorporated the special relationship principle into their interpretation of the FTCA by drawing "a distinction between cases involving harms that result from a breach of a duty that the government assumed prior to the actual [intentional tort], which are actionable under the FTCA, and cases...in which the alleged duty of the government to the victim arises only at the time of the assault and because of the assault." LM, 344 F.3d at 699 (emphasis added) (internal quotations omitted). In these "special relationship" cases, the employment status of the tortfeasor is irrelevant; the U.S. government is exposed to liability not as employer, but as the holder of an "independent, antecedent" duty with the plaintiff. Leleux v. United States, 178 F.3d 750, 757 (5th Cir. 1999); Sheridan v. United States, 487 U.S. 392 (1988).
Plaintiff has stated a plausible claim for relief under the special relationship theory by alleging 1) that his long-term care on both an inpatient and outpatient basis created a custodian-ward special relationship between Defendant and Plaintiff; and 2) his injuries were reasonably foreseeable to Defendant. While Count III must be dismissed on other grounds, it is worthwhile to note that Defendant construes the "arising out of" provision too broadly in its filings. Under Defendant's ...