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March 12, 1996

JOYCE POTTLE, Plaintiff,

The opinion of the court was delivered by: IRENAS

IRENAS, District Judge:

 Plaintiff was assaulted by a navy recruitment officer during a physical examination that was part of the recruitment process. She brought suit against the United States for negligence in the training and supervision of recruitment officers, for negligence in its failure to provide proper safeguards for activities involving the recruitment of women into the armed services, and for other undefined negligence. The government contends that the Court lacks subject matter jurisdiction because the government is immune from suit, as § 2680(h) of the Federal Tort Claims Act provides that the Act shall not apply to any claim arising out of assault or battery, and the plaintiff's claims arise out of the assault of plaintiff committed by Officer Lupo. In addition, the government argues that the officer's actions were outside the scope of his employment, and the government should not be liable for a claim based on such acts. The Court finds that the assault and battery by Officer Lupo occurred while he was acting within the scope of his employment, and that his assault on the plaintiff cannot be the basis of a claim against the United States. Whether the negligence claim against the government is framed as respondeat superior negligence, as improper hiring, training, or supervision, or as premises liability, it arose out of Lupo's assault and battery and is barred by 28 U.S.C. § 2680(h). The Court lacks subject matter jurisdiction to hear the case and summary judgment will be granted to the defendant.


 Plaintiff filed a Notice of Claim with the United States Navy on August 15, 1994, to apprise the government of the fact that she was the victim of an improper touching and other indecent acts by Petty Officer Kevin Lupo during a recruiting interview, and that she sought an amount of $ 100,000 for her personal injuries. She filed a complaint on May 18, 1995, stating negligence claims against the government, and the claim was administratively denied on June 8, 1995. The complaint alleges that "defendant United States of America negligently trained Petty Officer Lupo and/or failed to properly supervise the activities of its recruiters, including, but not limited to Petty Officer Kevin Lupo and/or failed to provide proper safeguards for activities involving the recruitment of women into the armed services and/or was otherwise negligent." Complaint, P 4.

 Pursuant to a Scheduling Order of the Court, the case was set for a scheduling conference on September 28, 1995. Discovery was not to begin until the time of the scheduling conference. The scheduling conference was adjourned to October 31, 1995, at the request of the United States Attorney. At that conference, the government informed plaintiff that it planned to file a motion for summary judgment rather than engage in initial discovery. The motion for summary judgment was served on plaintiff's counsel in early November 1995, and was filed with the Court on January 2, 1996.


 In November of 1992, Petty Officer Kevin Lupo recruited the plaintiff, Joyce Pottle, to join the United States Navy. As part of the recruitment process, Lupo drove plaintiff to the Naval recruiting center in Berlin, New Jersey. Lupo and Pottle were the only ones present at the center. There he conducted an interview and told plaintiff that he would have to carry out a body fat test on her to determine if she was eligible to join the Navy. Lupo instructed Pottle to enter an adjacent room and undress so he could perform the body fat examination. Pottle undressed down to her underwear and Lupo began the exam. During the course of the examination, which lasted more than 10 minutes, Lupo continued to tug at Pottle's underwear and complained that their presence was making the measurements difficult. Lupo told Pottle that he was becoming sexually aroused. Plaintiff terminated the interview. In subsequent weeks, Lupo called Pottle and told her not to tell anyone about the body fat examination because it was confidential. Plaintiff states that because of the actions of Petty Officer Lupo, she declined to be inducted into the Navy.

 Shortly before this incident, the Navy had issued Navy Recruiting Command Instruction 1130.8D, effective October 28, 1992, which stated that "recruiting personnel will not perform body fat measurements on applicants of the opposite sex. EXAMPLE: If a female applicant requires measurement and there are no female recruiting personnel at the station, the measurement can be delayed . . . or can be taken by the applicant herself. Good judgment and common sense must prevail at all times." Defendant's Exhibit B. Lupo did not inform Pottle about this regulation prior to the body fat examination he conducted on her.

 Sometime after the examination by Lupo, Pottle was contacted by Navy investigators who asked about her experience in the recruiting interview with Lupo. Pottle explained what happened, and the Navy investigators asked her if she would be willing to make a statement about the interview. Pottle said that she would and she then assisted in the investigation of Lupo. Lupo was tried by a military tribunal on June 8-9, 1994, for sexual assault on three different women during recruitment interviews, and he plead guilty to wrongfully measuring Pottle's hips, waist, and neck. The three incidents occurred between November 1992 and June 1993, and Pottle's assault was first in time. During the criminal proceedings, Lieutenant Evans, a Judge Advocates General Officer, told Pottle and her counsel that incidents such as those for which Lupo was prosecuted were not all that uncommon in recruiting activities. Lt. Evans also suggested that there were more women involved in Lupo's case than the three who had agreed to help with his prosecution.


 A. Standard of Review

 Under Fed. R. Civ. P. 56(c), "summary judgment is proper 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). At the summary judgment stage, it is not the role of the judge to weigh the evidence or to evaluate its credibility but to determine "whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). There is no issue for trial unless sufficient evidence favoring the nonmoving party exists such that a reasonable jury could return a verdict for that party. Id.

 The substantive law governing the dispute will determine which facts are material, and only disputes over those facts "that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. A genuine issue for trial does not exist "unless the party opposing the motion can adduce evidence which, when considered in light of that party's burden of proof at trial, could be the basis for a jury finding in ...

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