                                PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 12-2212


MARIA NICOLE DURDEN,

                Plaintiff - Appellant,

           v.

UNITED STATES OF AMERICA,

                Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.  James C. Dever III,
Chief District Judge. (5:11-cv-00442-D)


Argued:   September 19, 2013            Decided:   November 20, 2013


Before NIEMEYER, GREGORY, and FLOYD, Circuit Judges.


Affirmed by published opinion.    Judge Floyd wrote the opinion,
in which Judge Niemeyer and Judge Gregory concurred.


ARGUED: Nathan Harrill, WAKE FOREST UNIVERSITY SCHOOL OF LAW,
Winston-Salem, North Carolina, for Appellant.      Joshua Bryan
Royster, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee. ON BRIEF: Joseph L. Anderson, ANDERSON
PANGIA & ASSOCIATES, PLLC, Winston-Salem, North Carolina;
Douglas   P.  Desjardins,   TRANSPORTATION  INJURY  LAW   GROUP,
Washington, D.C., for Appellant.      Thomas G. Walker, United
States Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
FLOYD, Circuit Judge:

       On December 13, 2009, U.S. Army Specialist Aaron Pernell

unlawfully entered the home of Maria Durden while inebriated and

raped Durden in front of her children.             Durden subsequently sued

the government pursuant to the Federal Tort Claims Act (FTCA),

28 U.S.C. § 1346(b), alleging that the Army was negligent and

therefore is liable for the sexual assault against her.                        The

government     moved   to   dismiss   Durden’s      complaint    for    lack    of

subject matter jurisdiction and, alternatively, for failure to

state a claim upon which relief can be granted.                   The district

court granted the government’s motion with respect to subject

matter jurisdiction, and Durden appealed.                  For the reasons set

forth below, we affirm.



                                      I.

                                      A.

       Pernell joined the Army at age eighteen and was deployed to

Iraq after he completed his initial training in Georgia and a

two-day stay at Fort Bragg, North Carolina.                  Upon returning to

Fort   Bragg    subsequent    to   his       deployment,    Pernell    struggled

emotionally and began using drugs and abusing alcohol.                 In March

and August of 2009, Pernell told his staff sergeant that he

desired to kill himself and eleven current and former members of

his unit.      After each instance, the sergeant discouraged Pernell

                                         2
from seeking mental-health treatment and cautioned Pernell that

receiving      such     treatment    could    blemish     Pernell’s       military

record.     In September 2009, Pernell confided in a fellow soldier

that he was unable to sleep due to his drug and alcohol use; the

solider also advised Pernell not to seek mental-health treatment

because it could “mess up [Pernell’s] career.”

      On    September      10,   2009,   Pernell    burglarized     a     home   in

Fayetteville, North Carolina (which is adjacent to Fort Bragg)

and assaulted the home’s occupants with a pellet gun.                     Civilian

law enforcement arrested Pernell and charged him with burglary

and assault.         Pernell was then detained at a civilian jail from

September 11 to October 22, 2009, at which time his parents

posted bail on his behalf and his platoon leader retrieved him

and returned him to Fort Bragg.               During the transport back to

Fort Bragg, Pernell again expressed a desire to kill himself and

eleven members of his unit.

      Immediately upon Pernell’s return to Fort Bragg, the Army

began the process of administratively separating him.                   According

to   Durden,     Pernell’s       commanding    officer     issued     orders     on

October 22, 2009, that Pernell was to have a noncommissioned

officer escort at all times—both off and on Fort Bragg—and was

to   be    checked    on   hourly   to   ensure    that   he   remained    in    his

barracks.     Durden alleges that the orders were given to “prevent

harm to innocent base residents.”             Durden also claims that these

                                         3
orders    were    not       enforced.         Specifically,      Durden        claims      that

Pernell was permitted to leave his barracks at night to use

drugs and consume alcohol and, further, that Pernell’s superior

officers knew that Pernell violated the orders but did not act

to ensure that the orders were followed.

      The government paints a somewhat different picture of the

restrictions       placed        on    Pernell       following       his     release       from

civilian jail and the reasons for the restrictions.                                 According

to the government, Pernell was not required to have an escort

while on Fort Bragg, was not confined to his barracks, and was

not   required        to    be    checked     on     hourly;    rather,        Pernell     was

required to have an escort only when he left Fort Bragg, which

he could not do without first obtaining permission.                                Through an

affidavit,       the    government        asserts      that    revoking        a    soldier’s

leave-and-pass         privilege        off   Fort    Bragg     is     common      while    the

soldier    undergoes             the    process       of    being          administratively

separated, or subsequent to being in civilian confinement, “to

ensure    that        the    soldier      [is]     available         for    administrative

proceedings       and       [does]     not    go   absent     without        leave.”       The

government       also       notes      that    Pernell      received        event-oriented

counseling       on     October        22,    2009,    at      which       time     Pernell’s

commanding officer first learned of Pernell’s desires to harm

himself and others.              The government claims that Pernell recanted

these desires at that time; however, out of an abundance of

                                               4
caution, the Army ordered that Pernell be checked on every two

hours during the evening while in his barracks to ensure that he

did   not    harm       himself.            Pernell        then    underwent       a    scheduled

mental-health evaluation on October 30, 2009, after which it was

determined that, inter alia, Pernell exhibited a low potential

for   self-harm         and        harm    to        others.       As    a   result      of     this

assessment,        Pernell’s         commanding           officer       lifted    the    bihourly

evening checks.

      Pernell      raped       Durden        on       December     13,    2009,    at    Durden’s

residence on Fort Bragg.                     In January 2010, Pernell became a

suspect in Durden’s rape and consented to giving a DNA sample

that was used to identify him as Durden’s assailant.                                      Pernell

was also identified at that time as being involved in burglaries

and   sexual       assaults           that        occurred        in     2008    and     2009     in

Fayetteville.           Pernell           subsequently           requested        mental-health

treatment,        and    it    was        then       determined     that     Pernell     posed     a

medium     risk    of    harm       to     himself        and   others.         Following       this

evaluation,        the    Army—for          the        first    time,      according      to     the

government—placed             Pernell       on       barracks     restriction      and    ordered

that he be monitored at all times.

      On    December          8,    2010,        a    general     court-martial         convicted

Pernell of raping Durden.                   As a result, Pernell was sentenced to

fifty years’ imprisonment, had his military rank reduced, and

was dishonorably discharged from the Army.                               On August 11, 2011,

                                                      5
Durden sued the government.                  Durden alleged that the Army was

aware that Pernell posed a safety risk to others, had a duty to

protect her from Pernell, and breached that duty by failing to

execute the October 22, 2009 orders that, according to Durden,

required that Pernell be escorted at all times while on Fort

Bragg and be checked on hourly when in his barracks.

        The government moved to dismiss Durden’s complaint for lack

of subject matter jurisdiction and, alternatively, for failure

to state a claim.              Specifically, the government asserted that

the Army did not breach any duty owed to Durden under North

Carolina law and that Durden’s complaint is barred by the FTCA’s

intentional-tort exception, 28 U.S.C. § 2680(h).                       The district

court    granted   the     government’s           motion,   and    Durden    appealed.

This Court has jurisdiction over Durden’s appeal pursuant to

28 U.S.C. § 1291.



                                             B.

        This Court reviews de novo a district court’s decision on a

motion    to    dismiss    for       lack    of   subject    matter    jurisdiction.

Cooksey    v.   Futrell,       721    F.3d    226,    234   (4th    Cir.    2013).     A

defendant may contest subject matter jurisdiction in one of two

ways: by attacking the veracity of the allegations contained in

the   complaint    or     by    contending        that,   even    assuming   that    the

allegations are true, the complaint fails to set forth facts

                                             6
upon which jurisdiction is proper.                   Kerns v. United States, 585

F.3d   187,    192    (4th    Cir.    2009).         Here,    despite       presenting    a

version of the facts that differs from Durden’s version with

respect to the restrictions placed on Pernell, the government’s

challenges     to     jurisdiction      arise       under    the     latter   framework.

Specifically, the government contends that Durden’s allegations,

even if true, do not establish that the Army acted negligently.

Additionally         and    alternatively,         the    government        argues     that

Durden’s      complaint      is   barred      by    the     FTCA’s    intentional-tort

exception.       Because      these     are       facial—as       opposed   to    factual—

challenges      to    the    complaint,       Durden        “is    afforded      the   same

procedural      protection         as    [s]he        would        receive       under   a

Rule 12(b)(6) consideration,” Kerns, 585 F.3d at 192 (i.e., we

“assume the truthfulness of the facts alleged,” id. at 193).

       On appeal, Durden opposes each of the government’s bases

for dismissal.        We address these bases in turn.



                                           II.

                                           A.

       “As a sovereign, the United States is immune from all suits

against it absent an express waiver of its immunity.”                            Welch v.

United States, 409 F.3d 646, 650 (4th Cir. 2005).                                The FTCA

provides for one such waiver, wherein



                                              7
       the district courts . . . shall have exclusive
       jurisdiction of civil actions on claims against the
       United States, for money damages, . . . for injury or
       loss of property, or personal injury or death 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, under circumstances
       where the United States, if a private person, would be
       liable to the claimant in accordance with the law of
       the place where the act or omission occurred.

28 U.S.C. § 1346(b)(1).

       “An    action   [for     negligence]      under   the    FTCA   may    only   be

maintained if the Government would be liable as an individual

under the law of the state where the negligent act occurred.”

Kerns,   585    F.3d   at 194      (citing      28 U.S.C.      § 1346(b)(1)).        In

North    Carolina—where         the   Army’s      alleged      negligent      act    or

omission      occurred—a        defendant       cannot   be     held   liable        for

negligence absent a duty owed to the plaintiff and breach of

that duty.       Stein v. Asheville City Bd. of Educ., 626 S.E.2d

263,    267    (N.C.   2006).         Accordingly,       dismissal     of     Durden’s

complaint on the theory that the allegations are insufficient to

give rise to a negligence claim requires us to look beyond the

four corners of the complaint and to assess whether, under North

Carolina law, the Army owed any duty to Durden and, if it did,

whether it breached that duty.

       This    Court   considered       appeals      arising      under      the    same

procedural      posture    as    Durden’s       appeal   in    Kerns   and     Rivanna

Trawlers Unlimited v. Thompson Trawlers, Inc., 840 F.2d 236 (4th


                                            8
Cir. 1988), but resolved those cases differently.                                  In Kerns,

this Court vacated the district court’s dismissal for lack of

subject       matter       jurisdiction,                stating       that     where        “the

jurisdictional facts and the facts central to a tort claim are

inextricably        intertwined,      the       trial         court     should    ordinarily

assume      jurisdiction      and     proceed            to    the    intertwined       merits

issues.”      585 F.3d at 193.                 Notably, the government in Kerns

challenged      the        truthfulness            of     the     allegations          in    the

plaintiff’s     complaint—not         merely        their       legal     sufficiency,       see

id.—and     this    Court     concluded         that          discovery      “could”    reveal

information that might assist the plaintiff on the intertwined

merits issue, id. at 196.                By contrast, this Court in Rivanna,

despite recognizing that the issue at hand was “both a question

of subject matter jurisdiction and an element of appellants’

asserted     claims,”       treated      the    district          court’s     dismissal      for

lack of subject matter jurisdiction as one for failure to state

a   claim    that    had    been    converted            into     a   motion     for   summary

judgment.     840 F.2d at 239.

      This case is more akin to Rivanna than Kerns insofar as the

government      argued—and         the     district             court     held—that,        even

assuming that Durden’s allegations are true, the complaint still

fails to establish that the Army breached a duty to her under

North Carolina law.           See Durden v. United States, No. 5:11-CV-

442-D, 2012 WL 3834934, at *8 (E.D.N.C. Aug. 31, 2012) (“Durden

                                               9
satisfies the subject matter jurisdiction requirement that the

government    owed    her    a    duty    before      the       intentional       tort   was

committed. . . . Durden’s alleged facts do not establish that

the government breached a duty that it owed to her.” (citation

omitted));     id.    at    *10    (“Even       accepting          as     true    Durden’s

allegations regarding the ways that the government restricted

Pernell     after    Pernell     returned      to    Fort       Bragg     following      his

September 10, 2009 arrest, Pernell’s tendency to commit violent

acts did not cause Pernell to be in the government’s custody.”);

id. at *13 (“[A]ccepting as true Durden’s allegations regarding

the government’s efforts to restrain Pernell, these allegations

do   not    establish      the    existence         [of]    a     duty     owed    by    the

government to Durden under North Carolina’s version of the Good

Samaritan     Doctrine.”).         Moreover,         as    we    explain     in    greater

detail     below,    Durden’s     discovery         requests,      even     if    granted,

would not assist her on the merits of the underlying negligence

issue.        Thus,     despite     the     district            court’s     “technically

incorrect    statement”      purporting        to    dismiss      Durden’s        complaint

for lack of subject matter jurisdiction, “the court considered

the [negligence] issue as though it were the basis of a motion

to dismiss for failure to state a claim that had been converted

into a motion for summary judgment.”                      Rivanna, 840 F.3d at 239

(Powell, J. (Ret.), sitting by designation).



                                          10
       We    turn    now      to   whether        the    district       court       correctly

determined     that     the    government         is    entitled     to   judgment      as   a

matter of law.        See Fed. R. Civ. P. 56(a) (standard for granting

summary judgment).             In doing so, we examine in turn Durden’s

three theories of a duty that the Army owed to her under North

Carolina law and allegedly breached.



                                             B.

                                             1.

       In    North    Carolina,     “a    landlord        has    a   duty      to   exercise

reasonable care to protect his tenants from third-party criminal

acts that occur on the premises if such acts are foreseeable.”

Davenport v. D.M. Rental Props., Inc., 718 S.E.2d 188, 189–90

(N.C.   Ct.    App.    2011).       Durden’s           first   theory     of    negligence,

then, is that the Army, as landlord of Fort Bragg, breached a

duty    to    protect      her     from   Pernell’s            reasonably       foreseeable

attack.

       The most probative evidence on the question of whether
       a criminal act was foreseeable is evidence of prior
       criminal   activity  committed.     However,   certain
       considerations restrict [courts] as to which evidence
       of prior criminal activity is properly considered.
       General considerations are [1] the location where the
       prior crimes occurred, [2] the type of prior crimes
       committed, and [3] the amount of prior criminal
       activity.




                                             11
Connelly v. Family Inns of Am., Inc., 540 S.E.2d 38, 41 (N.C.

Ct. App. 2000) (citations omitted).                 Foreseeability may also be

established      by   a   landlord’s        knowledge     of   a    specific   threat

against individuals.        See Davenport, 718 S.E.2d at 191.                  Durden

identifies two incidents that she believes render Pernell’s rape

of her foreseeable: Pernell’s repeated expressed desires to kill

himself    and    members       of    his   unit    (viewed     collectively)       and

Pernell’s     September         10,     2009       burglary        and   assault    in

Fayetteville. 1       For the reasons set forth below, however, we hold

that these incidents are not sufficient to render Pernell’s rape

of Durden “foreseeable” under North Carolina law.

      As an initial matter, we reject for two reasons Durden’s

argument that Pernell’s prior expressed desires to kill himself

and members of his unit established foreseeability of the rape.

First, even assuming that Pernell’s desires tend to show that he

had   a   propensity      for    violence,       Durden   has      still   failed   to

demonstrate how such desires fall within the purview of “prior

criminal activity.”         See Connelly, 540 S.E.2d at 41 (emphasis


      1
       Although Durden does not raise this argument, we note that
Pernell’s alcohol abuse and drug use, even if criminal acts, do
not qualify as “prior criminal activity” for purposes of
determining whether Pernell’s rape of Durden was foreseeable for
at least the reason that they are not the same type of prior
crimes.   See Connelly, 540 S.E.2d at 42 (“instances of public
drunkenness, shoplifting, vandalism[,] and disorderly conduct”
are not the types of incidents to be considered for purposes of
establishing foreseeability of armed robbery).


                                            12
added).     To wit, Durden has not alleged what “crime” the mere

desire    to      harm     or     kill      another     person,     without     more,

constitutes, 2 and North Carolina courts require more than the

mere wishing of harm upon another person to establish criminal

liability.       See, e.g., State v. Merrill, 530 S.E.2d 608, 612–13

(N.C. Ct. App. 2000) (“evidence [of] defendant’s expressions of

her desire that the victim be dead,” absent assent to the murder

plan,    insufficient      to     support    a   conspiracy-to-murder      charge);

see also State v. Miller, 477 S.E.2d 915, 921 (N.C. 1996) (crime

of attempt requires an overt act that “must reach far enough

towards the accomplishment of the desired result to amount to

the commencement of the consummation”).                      Second, setting aside

the criminality (or not) of Pernell’s desires, Durden has not

demonstrated       that    the     Army     should    have    gleaned    from   those

desires    the    notion    that     Pernell      would      sexually   assault   any

tenant    on   Fort      Bragg,    let    alone      Durden   specifically.       See

Davenport,       718   S.E.2d     at 191     (citing     Anderson   v.    124   Green

Street LLC, No. 09-2626-H, 2011 WL 341709, at *3 (Mass. Super.

     2
       Durden characterizes Pernell’s desires to kill himself and
others as “threats.”    Pernell, however, did not state in his
affidavit that he ever intended to act on his desires or that he
communicated the desires to those members of his unit whom he
wished to harm; rather, Pernell indicated that he expressed the
desires to his staff sergeant and platoon leader in an effort to
receive mental-health treatment because, according to Pernell,
“[he] knew a report of that kind ought to automatically trigger
[his] commitment to a mental health facility.”



                                            13
Ct. Jan. 21, 2011) (“A duty to evict . . . may arise where the

landlord knows of a specific threat that one tenant poses to

another . . . .”)).

      Turning now to the September 10, 2009 burglary and assault—

indeed, a prior criminal activity—we are satisfied that it meets

the second of Connelly’s three foreseeability criteria insofar

as it qualifies as the same “type of prior crime[]” as Pernell’s

subsequent rape of Durden.           See, e.g., Murrow v. Daniels, 364

S.E.2d 392, 397–98 (N.C. 1988) (prior crimes of armed robbery,

kidnapping, assault, vehicle theft, and larceny deemed relevant

for   determining      whether    sexual      assault    against   plaintiff       was

foreseeable).       With respect to the first prong—“the location

where   the   prior     crimes    occurred”—the         North   Carolina    Supreme

Court   has     been     clear    that     “evidence       pertaining      to      the

foreseeability of [a] criminal attack shall not be limited to

prior criminal acts occurring on the premises,” and “criminal

acts occurring near the premises in question may be relevant to

the question of foreseeability.”               Id. at 397 (citation omitted)

(internal     quotation     marks     omitted).             However,    decisions

subsequent    to   Murrow   have    fashioned      Murrow’s      language     as    an

“exception”     limited      to     “criminal       activity       in   the     area

immediately surrounding [the] defendant[’s] premises.”                        Purvis

v. Bryson’s Jewelers, Inc., 443 S.E.2d 768, 770 (N.C. Ct. App.

1994) (considering only prior criminal activity that occurred

                                         14
within three blocks of defendant’s property); see Bennett v.

Equity       Residential,          692   S.E.2d          489     (N.C.       Ct.    App.       2010)

(unpublished        table        decision)    (considering           only      prior      criminal

activity that occurred within the defendant’s apartment complex

where plaintiff resided).

       Here, there is no indication in the record regarding the

physical distance between the site of the September 10, 2009

burglary and assault in Fayetteville and the site of Pernell’s

rape of Durden on Fort Bragg.                       Although one incident occurred

off   the     military         installation        and    the    other       on    the    military

installation,            North     Carolina        courts       do     not     appear         to    be

concerned      with       such    formal     line-drawing.               See      Connelly,         540

S.E.2d at 42 (considering, for a crime that occurred in North

Carolina,      prior       criminal      activity         that    occurred         at    the       same

interstate-highway intersection but on the South Carolina side

of the intersection).               Nevertheless, it is possible that if the

September 10, 2009 burglary and assault was sufficiently far

away from Pernell’s rape of Durden, then it is “too remote to

guide       [the]    determination”          of     foreseeability.                 Id.       at     41

(excluding         from    a     foreseeability          analysis        prior      crimes         that

occurred      in    a     neighboring       town     twenty       miles       away).          Absent

additional information about the distance between the locations

of    the    incidents,          however,     we    are        unable    to       determine         how

relevant—if         at    all—the     September          10,    2009     incident        is    in     a

                                              15
foreseeability         calculus       with   respect     to    Pernell’s    rape    of

Durden.

       Regardless, even assuming that Pernell’s September 10, 2009

burglary and assault is sufficiently near in proximity to the

rape, Durden’s argument that the rape was foreseeable fails on

Connelly’s      third     criterion—“the            amount    of   prior     criminal

activity.”       Durden does not identify any additional criminal

activity—other than Pernell’s expressed desires to kill himself

and others, which we have already excluded categorically—that

occurred prior to the rape and that should have alerted the Army

that it was foreseeable that she would be attacked.                      Cf. Murrow,

364 S.E.2d at 397–98 (“The plaintiff presented evidence that one

hundred      incidents        of   criminal       activity    at   the     [relevant]

intersection area had been reported to the sheriff’s department

[during the four and a half years leading up to the crime].”);

Connelly, 540 S.E.2d at 42 (“The evidence in this case . . .

indicates that in the five years preceding the armed robbery

. . . , one hundred instances of criminal activity bearing on

the    issue     of     foreseeability            occurred    at   the     [relevant]

intersection.”); Urbano v. Days Inn of Am., Inc., 295 S.E.2d

240,   242     (N.C.    Ct.    App.    1982)      (denying    summary    judgment   on

negligence claim where defendant “knew of at least 42 episodes

of criminal activity taking place on its motel premises during a

period of three years preceding the date of plaintiff’s injury,”

                                             16
and “[a]t least 12 of the episodes occurred during the three and

one half months preceding plaintiff’s injury”).                          Rather, Durden

points     to      a    single       incident—Pernell’s       September         10,     2009

burglary and assault—which is not sufficient in hindsight to

render    a     future       attack    foreseeable      for   purposes     of    landlord

liability.         See Davenport, 718 S.E.2d at 191 (citing Anderson,

2011 WL 341709, at *3 (“A duty to evict . . . may arise . . .

where there is a history of violence by one tenant against other

tenants.” (emphasis added))).

     Accordingly, Durden has failed to establish that Pernell’s

rape of her was foreseeable under North Carolina law, and thus

the Army did not breach a duty owed to her as landlord of Fort

Bragg.



                                               2.

     “In general, there is neither a duty to control the actions

of a third party, nor to protect another from a third party.”

Scadden       v.   Holt,      733     S.E.2d   90,   92    (N.C.   Ct.     App.       2012).

However,           certain          “[s]pecial       relationships          create         a

responsibility          to     take    affirmative        action   for    the     aid    or

protection         of    another,        and     they     arise    only     in        narrow

circumstances.”          Bridges v. Parrish, 742 S.E.2d 794, 797 (N.C.

2013) (citation omitted) (internal quotation marks omitted).                               A

“special relationship” can arise between the defendant and the

                                               17
plaintiff,          or    between   the        defendant      and     a     third-party

tortfeasor.          Scadden, 733 S.E.2d at 93 n.2.                  When the latter

type of special relationship exists, “there is a duty upon the

actor to control the [tortfeasor’s] conduct and to guard other

persons against his dangerous propensities.”                         King v. Durham

Cnty. Mental Health Developmental Disabilities & Substance Abuse

Auth.,    439       S.E.2d   771,   774   (N.C.     Ct.      App.    1994)   (citation

omitted) (internal quotation marks omitted).                         Durden’s second

theory    of    negligence,      then,    is    that   the    Army    had    a   special

relationship with Pernell, owed to her a duty to protect her

from Pernell pursuant to that relationship, and breached that

duty when Pernell raped her.

     Durden claims that the Army had a special relationship with

Pernell insofar as the Army (1) ”[knew] or should [have] know[n]

of [Pernell’s] violent propensities” and (2) “ha[d] the ability

and opportunity to control [Pernell] at the time” that he raped

Durden.    Stein, 626 S.E.2d at 269 (setting forth the two-pronged

test for a special relationship).                Even assuming, arguendo, that

Durden can satisfy both prongs of the special-relationship test

and, moreover, that the government was negligent in failing to

control Pernell, Durden’s claim that the government is liable

pursuant       to   the   FTCA   still    fails.       That     is    because    “[t]he

ability and opportunity to control [a third party] must be more

than mere physical ability to control.                  Rather, it must rise to

                                          18
the level of custody, or legal right to control.”                      Scadden, 733

S.E.2d at 93.         The FTCA is clear, however, that the government

is liable only “under circumstances where the United States, if

a private person, would be liable to the claimant in accordance

with the law of the place where the act or omission occurred.”

28 U.S.C. § 1346(b)(1) (emphasis added).                     Thus, setting aside

the   Army’s    ability       to    control     Pernell   that      attached    solely

pursuant to his employment status as a soldier, the Army must

have had some other legal authority to control him.                         But Durden

cannot demonstrate (nor has she alleged) that the Army had the

ability   to    control       Pernell     pursuant   to     some    legal    authority

independent of Pernell’s employment status and, accordingly, the

Army cannot be said to have a “special relationship” with him

for purposes of an FTCA claim.                  See Stein, 626 S.E.2d at 269.

Durden’s second theory of negligence therefore also fails.



                                           3.

      “[U]nder        certain      circumstances,     one     who    undertakes     to

render    services       to     another     which    he   should      recognize     as

necessary for the protection of a third person, or his property,

is    subject    to    liability      to    the   third     person    for     injuries

resulting from his failure to exercise reasonable care in such

undertaking.”         Quail Hollow E. Condo. Ass’n v. Donald J. Scholz

Co., 268 S.E.2d 12, 15 (N.C. Ct. App. 1980).                         Durden’s final

                                           19
theory of negligence, then, is that by undertaking the task of

monitoring and controlling Pernell following his release from

civilian confinement, the Army voluntarily assumed a duty to

protect her from Pernell and breached that duty when Pernell

raped   her.    However,   this   theory   of   a   duty   fails   for   two

reasons.

      First, Durden cannot demonstrate that the Army should have

recognized that enforcing the October 22, 2009 orders, as Durden

alleges, was necessary for the protection of others.               On this

issue, Lumsden v. United States, 555 F. Supp. 2d 580 (E.D.N.C.

2008), is instructive.     In Lumsden, Marine corpsmen returned to

the tortfeasor (also a corpsman) his vehicle after the vehicle

was impounded when it was discovered that he was inhaling ether.

Id. at 582.    Upon the return of his vehicle, the corpsman became

intoxicated on ether that remained in his vehicle and, as a

result, he injured the plaintiffs and killed one other person.

Id.     The court denied the government’s motion to dismiss the

plaintiffs’ FTCA claim and allowed the lawsuit to proceed on a

general negligence theory.        See id. at 589–90.        Specifically,

the court noted that,

      If the plaintiffs can show that the Government’s
      agents knew or had reason to know that upon being
      provided the keys to his car and a canister of ether,
      [the corpsman] would become intoxicated at his first
      opportunity and immediately would attempt to drive on
      a public street while so intoxicated, then the agents’


                                   20
     “behavior thus triggers duty [because]               the   risk   is
     both unreasonable and foreseeable.”

Id. at 589 (second alteration in original) (quoting Mullis v.

Monroe Oil Co., 505 S.E.2d 131, 136–37 (N.C. 1998)).

     In contrast to the tortfeasor in Lumsden, Pernell had been

released from civilian confinement for more than six weeks prior

to raping Durden, and there is nothing in the record to indicate

that the Army should have known that Pernell was a threat to

Durden’s safety based solely on the September 10, 2009 incident

or his prior expressed desires to kill himself and members of

his unit.    At the time that Pernell raped Durden, the Army had

no reason to suspect that Pernell committed the burglaries and

sexual assaults that occurred in 2008 and 2009 in Fayetteville;

indeed, it was only after Pernell raped Durden and became a

suspect in that rape that authorities also identified him as

being involved in the prior incidents.         It might be a different

case if the Army knew that it was one of its own soldiers, and

Pernell specifically, that committed the 2008 and 2009 sexual

assaults in Fayetteville.         Under those circumstances, the Army

may have had reason to know that Pernell was a serial offender

and thus owed to Durden a duty to control Pernell upon his

release from civilian confinement. Cf. id. at 582 (“[T]he Marine

Corps,   through   its   agents   or   officers,   were    aware   that     [the

tortfeasor] had, on several occasions, acquired and inhaled the


                                       21
chemical    compound,     ether,          belonging       to    the    Government.”

(emphasis added)).       Durden does not dispute, however, that the

Army did not become aware that Pernell was involved with the

2008 and 2009 crimes until after Pernell raped her.

     Second, Durden has not presented any authority suggesting

that, “under similar circumstances, a private person in North

Carolina would be found to have owed a duty of ordinary care to

persons in [Durden’s] position.”                Id. at 589–90; see 28 U.S.C.

§ 1346(b)(1)    (holding        the       government       liable     only       “under

circumstances   where    the    United         States,    if   a   private   person,

would be liable”).       Stated otherwise, Durden has presented no

authority   suggesting     that       a    private    person—even       knowing      of

Pernell’s   September 10,       2009      burglary       and   assault,    Pernell’s

expressed desires to kill himself and members of his unit, and

Pernell’s   frequent     drug     and      alcohol       abuse—would      have     been

required (or permitted, for that matter) by law to place Pernell

under twenty-four-hour surveillance and to confine him to his

barracks or a civilian equivalent thereto.                     To hold otherwise

would render every private individual liable for the intentional

torts of another person against unknown third parties simply

because the individuals knew that the tortfeasor abused alcohol

and drugs and committed a violent crime at some point in the

past.



                                          22
        Accordingly, Durden’s argument that the government breached

a voluntarily assumed duty to protect her fails.



                                      C.

     Durden also argues that “[t]he District Court abused its

discretion by transforming the [Rule] 12(b)(1) motion into a

judgment on the merits without the opportunity for discovery or

cross-examination      of    the   witnesses    making       affidavits,   and

especially where the jurisdictional question and the merits of

the appellant’s claim were intertwined.”              In particular, Durden

seeks     discovery    pertaining        primarily    to     what   Pernell’s

commanding officers knew regarding Pernell’s allegedly violent

propensities and the extent of the restrictions placed upon him.

But Durden has failed to set forth what additional information

might be uncovered through discovery beyond the statements in

Pernell’s affidavit and, moreover, how that information might

render the government liable under any of her three theories of

negligence.      For even if Durden were granted the discovery that

she requests, and even if her allegations regarding the orders

given     by   Pernell’s    commanding     officer    were    confirmed,   her

theories of negligence would still fall short of the Army being

liable for her injuries.           Accordingly, the district court did

not abuse its discretion by ruling on the government’s motion

without granting discovery to Durden.                See Carefirst of Md.,

                                      23
Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 402–03

(4th   Cir.   2003)      (standard   of    review    for     decisions     regarding

jurisdictional discovery).

       First, with respect to Durden’s theory of negligence based

on landlord liability, Durden does not seek discovery regarding

the Army’s knowledge of any and all incidents of “prior criminal

activity”     on   Fort   Bragg   that     might    render    Pernell’s     rape   of

Durden “foreseeable” under North Carolina law, see Connelly, 540

S.E.2d at 41; rather, Durden’s discovery requests pertain to

“the full extent of [the] awareness [of Pernell’s commanding

officer], or the awareness of others in the chain of command, of

the dangerous propensities of Pernell,” and any “regulations,

procedures, and policies regarding the duties of the [Army] as

landlord.”     But Durden has not shown how information pertaining

to Pernell, specifically, and military policy, generally, comes

to bear on the foreseeability of a rape on Fort Bragg.                      See id.

(foreseeability determined by “prior criminal activity,” which

is limited to “[1] the location where the prior crimes occurred,

[2] the type of prior crimes committed, and [3] the amount of

prior criminal activity”).

       Second, with respect to Durden’s theory of negligence based

on a “special relationship” between the Army and Pernell, Durden

simply has not demonstrated how factfinding would assist her in

developing     a   new    legal   theory    under    which    the   Army    had    the

                                          24
ability    to   control     Pernell      independent           from   his    status     as   a

soldier (i.e., government employee).                       See Scadden, 733 S.E.2d

at 93; see also 28 U.S.C. § 1346(b)(1).

       And third, with respect to Durden’s theory of negligence

pursuant to a voluntarily assumed duty, Durden has not set forth

what   additional     information         the      Army    might      have    known    about

Pernell    prior    to    the    rape     and      that    she     might     learn    during

discovery that would render the government liable.                            Presumably,

Pernell made known in his affidavit all facts relevant to his

criminal    history      and     any    propensity         for     violence     or,     at   a

minimum,    Durden    would      have     alleged         that    Pernell     had    such    a

criminal history.         Discovery, then, would serve the purpose of

determining whether the Army knew of Pernell’s criminal history;

however,    discovery       is    not    for       the    purpose     of     learning    new

information about Pernell that the Army would have had no reason

to know or undisputedly did not know prior to Pernell’s rape of

Durden.     Pernell’s affidavit does not state that he committed

any prior crimes that should have put the Army on notice that he

was    a   serial    offender,          and     Durden      does      not    dispute     the

government’s claim that it was only after Pernell raped Durden

and gave a DNA sample that Pernell was linked to the 2008 and

2009   burglaries     and      sexual     assaults        in     Fayetteville.         Thus,

although     Durden’s       claim       that       relevant       evidence      is     “held

exclusively within the walls of the defendant” might be true

                                              25
with respect to what the Army knew about Pernell prior to the

rape, Durden has not put forth any facts or information about

Pernell    that    she     believes      that      the     Army     knew    in    the    first

instance     and        that    she     would       know       by    way     of    Pernell.

Accordingly, discovery would serve no purpose, and it was not

error for the district court to reach the merits of Durden’s

claim at this stage of the litigation.



                                          III.

      As an alternative basis for dismissing Durden’s complaint,

the   district     court       held    that   the       fact   that    the   Army       gained

knowledge    of     Pernell’s         allegedly     violent         propensity     via     his

government    employment         was    enough      to     nullify     Durden’s         claims

pursuant to the FTCA’s intentional-tort exception.                           The district

court overstated the exception’s reach, however, and therefore

we conclude that the district court erred in dismissing Durden’s

complaint on this alternative basis.

      The FTCA carves out an exception to its own general waiver

of immunity that bars recovery for “[a]ny claim arising out of

assault[]    [or]       battery.”        28   U.S.C.       § 2680(h).        The       Supreme

Court defined the scope of the intentional-tort exception in

Sheridan v. United States, 487 U.S. 392 (1988).                              In Sheridan,

three naval corpsmen encountered the tortfeasor, also a naval

employee,    in     a    drunken       stupor      in    the      hallway    of    a    naval

                                              26
hospital.    Id. at 394–95.          The corpsmen “attempted to take [the

tortfeasor] to the emergency room, but he broke away, grabbing

[his] bag and revealing the barrel of the rifle.”                      Id. at 395.

The corpsmen then fled from the scene and took no further action

to    restrain   the   tortfeasor     or    to    alert   authorities    that   the

tortfeasor was intoxicated and in possession of a firearm.                      Id.

The tortfeasor later shot and injured one of the plaintiffs and

damaged the plaintiffs’ vehicle.                Id.   The plaintiffs then sued

the    government    by   way   of   the    three     corpsmen   for   negligently

allowing the tortfeasor to leave the hospital with a gun while

“obviously intoxicated.”         Id. at 393–94.

       The district court in Sheridan dismissed the plaintiffs’

complaint as barred by the intentional-tort exception, and this

Court affirmed, holding that “§ 2680(h) bars actions alleging

negligence of the supervising employees when the underlying tort

is an assault or battery by a government employee.”                    Sheridan v.

United States, 823 F.2d 820, 823 (4th Cir. 1987).                      The Supreme

Court,    however,     reversed      and    allowed     the   plaintiffs’    claim

against the government to proceed, reasoning that

       the mere fact that [the tortfeasor] happened to be an
       off-duty federal employee should not provide a basis
       for protecting the Government from liability that
       would attach if [he] had been an unemployed civilian
       patient or visitor in the hospital. Indeed, in a case
       in which the employment status of the assailant has
       nothing to do with the basis for imposing liability on
       the Government, it would seem perverse to exonerate


                                           27
       the Government because of the happenstance that [the
       tortfeasor] was on a federal payroll.

Sheridan, 487 U.S. at 402.

       Here,        the    district          court       below       held    that,        unlike    in

Sheridan—where the drunken tortfeasor’s status as a government

employee    was       wholly       irrelevant            to   imposing       liability       on    the

government for the corpsmen’s negligence—Pernell’s status as a

government employee was a but-for element of Durden’s negligence

claim, thus barring the claim.                          Specifically, the district court

held    that    “even        if       the    government’s            knowledge      of     Pernell’s

tendency       to    commit        criminal            acts    made    Pernell’s          assaulting

Durden foreseeable to the government before December 13, 2009,

section     2680(h)          still          negates       the    court’s          subject       matter

jurisdiction.              After      all,        the    government        only    acquired        such

knowledge in the course of Pernell’s employment.”                                    Durden, 2012

WL     3834934,       at *9;          see        id.     (“[B]ecause         the     government’s

knowledge       of        [Pernell’s]            tendency       to    commit       criminal        acts

stemmed        solely         from          [his]        government          employment,           the

government’s         breach        of       any    duty       owed    to    [Durden]        was    not

independent of the employment relationship.” (citing Bajkowski

v. United States, 787 F. Supp. 539, 541–42 (E.D.N.C. 1991) (“If

[the tortfeasor] were not an employee of the Army, the Army

would not have had . . . knowledge of his prior criminal and

assaultive      behavior          .     .    .    .”))).        The    same       could    be     said,


                                                    28
however,    about    the       corpsmen’s      knowledge     of    the       intoxicated

tortfeasor in Sheridan: presumably, the corpsmen alleged to have

acted   negligently       would    not    have    been   present        in    the   naval

hospital that night—and thus would not have gained knowledge of

the drunken tortfeasor and put themselves in a position to be

negligent in the first instance—were it not for their government

employment.

     Accordingly,         we    hold     that,     although       the    government’s

ability    (i.e.,   legal       duty)    to    control   a    tortfeasor        must   be

independent of the tortfeasor’s status as a government employee,

knowledge     of    the    tortfeasor’s          propensity       for    violence      or

criminal history gained as a result of such status does not, per

se, nullify an FTCA claim.               The district court’s dismissal on

this alternative basis was therefore erroneous.



                                         IV.

     For the reasons set forth above, we affirm the district

court’s grant of summary judgment to the government.

                                                                                AFFIRMED




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