Feds Not Off Hook for Alleged Sexual Assault

     ATLANTA (CN) – An inmate’s claims that a prison doctor sexually abused him will go forward despite the federal government’s effort to dismiss them, a federal judge ruled.
     Howard Brons sued the United States on March 25, 2014, for negligent hiring and retention, claiming that Atlanta, Ga. prison physician Dr. Lewis Jackson sexually assaulted him during an exam. Jackson has previously pleaded guilty to sexually abusing inmates, according to the ruling.
     The federal government filed a motion to dismiss last June, arguing that hiring decisions are protected, discretionary functions and that it’s not liable as an employer under Georgia law.
     Last week, U.S. District Judge William Duffey, Jr. granted the dismissal motion with respect to one count of respondeat superior, but denied dismissal of Brons’ claims for negligent hiring, negligent retention and respondeat superior based on human resources negligence. Brons’ negligent hiring and retention claims survive dismissal because the federal government can’t rely on the discretionary function exception to the Federal Tort Claims Act if it knew that Jackson was a sexual predator, the judge ruled.
     “Three years after the first sexual assault by Jackson on an inmate, plaintiff alleges, Jackson sexually assaulted him while plaintiff was an inmate at the penitentiary. Whether these prior sexual assaults in D.C. and Atlanta were known, or should have been known, to the government before it hired or retained Jackson at the penitentiary is a disputed issue of fact,” Duffey wrote. “In considering defendant’s motion to dismiss as a facial and factual attack on the complaint, the court finds that the complaint contains plausible allegations that defendant may have acted negligently in hiring and retaining Jackson at the penitentiary.”
     The one count dismissed by the district court was respondeat superior – or vicarious – liability for Jackson’s conduct. Duffey dismissed the count because the alleged sexual assault on Brons was not related to Jackson’s employment duties.
     “Jackson’s alleged sexual assault on plaintiff was outside the scope of his employment with the [Bureau of Prisons] because he committed the acts for his own sexual gratification,” the judge wrote. “Jackson’s actions also were not in furtherance of the BOP’s business because he was not authorized to sexually stimulate plaintiff’s genitalia with his hands or mouth.” But Duffey ruled that Brons’ other vicarious liability claim, this one for human resources negligence, endures. Brons doesn’t claim negligence against a specific HR employee but claims the federal government is responsible for the negligence of its HR personnel for hiring Jackson, according to the ruling.
     “Because it is alleged that Jackson sexually assaulted an inmate in D.C. in 2008 and in Atlanta in 2010, and was hired and retained by the penitentiary despite committing sexual misconduct in the past, the complaint asserts a plausible respondeat superior claim against defendant for the alleged negligence of its HR personnel in selecting and retaining Jackson,” Duffey wrote.

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