Unpublished Disposition, 875 F.2d 318 (9th Cir. 1989)

MEMORANDUM^* 

Appellant Donna Knappick filed this action against the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b) and 2671-2680 (1989), for injuries she suffered as a result of an alleged rape committed by Leslie DeVille, a federal correctional officer.¹  The district court entered a Rule 12(b) (6) dismissal of all of Knappick's claims on the ground that they were barred by the "discretionary function" exception to the FTCA, 28 U.S.C. § 2680(a).²  Knappick filed this appeal. We affirm the dismissal as to all of Knappick's claims with one exception: Knappick has stated a claim for relief against the United States on the theory that prison officials were negligent in the hiring and supervision of DeVille.

* We turn first to the claims that were properly dismissed. In her complaint, Knappick alleges that the rape was committed by DeVille while he was acting "as a Federal Correctional Officer." Complaint at p 5. Knappick's first claim for relief is premised on the theory that the United States is liable under the FTCA on a respondeat superior theory for the intentional tort of its employee. It is now settled law that the intentional tort exception to the FTCA, 28 U.S.C. § 2680(h), shields the government from suit on a respondeat superior theory for the intentional torts of its employees. See Sheridan v. United States, --- U.S. ----, 108 S. Ct. 2449, 2453-54 (1988); see also Bennett v. United States, 803 F.2d 1502 (9th Cir. 1986). Thus, the district court properly dismissed Knappick's respondeat superior claim against the United States.

Knappick also premises liability on the theory that the prison officials failed to provide an adequate number of correctional officers--and in particular, female correctional officers--in the women's housing area of the prison. The district court ruled, and we agree, that this claim is barred by the discretionary function exception to the FTCA. Decisions by government officials as to the number and gender of guards to deploy in a given area of a prison are policy determinations that seek to accommodate "safety [goals] and the reality of finite agency resources." United States v. Varig Airlines, 467 U.S. 797, 820 (1984). As such, they fall within the realm of governmental activities that Congress intended to protect from exposure to suit by private individuals. Id. at 808.

II

Knappick's final claim based on negligent hiring and supervision, however, is not barred by either the intentional tort or the discretionary function exception to the FTCA. While the Supreme Court has reserved judgment on the issue, see Sheridan, 108 S. Ct. at 2456 n. 8, this circuit has held that the intentional tort exception is no bar to a suit against the United States based on the negligent supervision and hiring of an employee that proximately results in an assault or battery. Kearney v. United States, 815 F.2d 535, 538 (9th Cir. 1987); Bennett, 803 F.2d at 1503-04. Nor is the discretionary function exception a bar if those responsible for making the hiring and supervision decisions did not follow the prescribed course of conduct set forth in federal statute, regulation or policy. Berkovitz v. United States, --- U.S. ----, 108 S. Ct. 1954, 1958 (1988). Thus, if Knappick can establish that the employees who investigated DeVille's background, or who decided on the appropriate level of supervision, failed to follow the procedures laid out in federal statute or the Bureau of Prison's own regulations, she will have stated a claim for relief under the FTCA.

In her complaint, Knappick alleges that the rape was proximately caused by Federal Bureau of Prisons officials' " [f]ailure adequately to supervise ... Leslie DeVille" and " [f]ailure adequately to investigate and determine the fitness of Leslie Deville to become a Federal Correctional Officer." Complaint at p 14(a) and (e). For the purposes of a motion to dismiss, "the material allegations of the complaint are taken as admitted," and the complaint is to be liberally construed in favor of the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). The complaint should not be dismissed unless it "appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

While inartfully drawn, Knappick's complaint is sufficient to state a claim for relief. Liberally construed, her allegation that officials in the Bureau of Prisons acted negligently in the hiring and supervision of DeVille encompasses the charge that such negligence occurred as a result of the officials' failure to comply with federally mandated procedures and policies. Although we express no opinion as to the quality of Knappick's evidence, if any, that prison officials failed to follow federal law or policy in hiring and supervising DeVille, it does not appear beyond a doubt that she cannot prove such a set of facts. Accordingly, her claim for relief on this theory is sufficient to withstand a 12(b) (6) motion to dismiss.

The judgment of the district court is AFFIRMED in part, REVERSED in part and REMANDED for further proceedings in light of this decision. The parties shall bear their own costs on appeal.