IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-31080 Summary Calendar

CARRIE STIDHAM,

Plaintiff-Appellant,

versus

UNITED STATES OF AMERICA,

Defendant-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 99-CV-2794-T - - - - - - - - - - March 13, 2001

Before HIGGINBOTHAM, WIENER, and BARSKDALE, Circuit Judges.

PER CURIAM:*

Carrie Stidham appeals from the district court’s grant of

the Government’s motion to dismiss or, in the alternative, for

summary judgment, in her lawsuit filed under the Federal Tort

Claims Act (“FTCA”),

(b), 2671-2680. At the

time of the relevant events, Stidham was a young U.S. Army

recruit. She alleged that three Army sergeants, on multiple

occasions during a period of several months, sexually assaulted

her, forced her to perform oral sex, and intentionally inflicted

emotional distress. The district court dismissed the Army as a

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 00-31080 -2-

defendant, and that dismissal is not challenged. The district

court granted the government’s motion for summary judgment,

concluding that any claims relating to sexual assault or

nonconsensual sexual contact were barred by the FTCA’s exclusion,

under

(h), of claims involving “assault” and

“battery” from the FTCA’s general waiver of sovereign immunity.

The court also granted summary judgment upon a claim of

intentional infliction of emotional distress because Stidham

failed to demonstrate that the sergeants were acting within the

scope of their employment during the alleged incidents.

We review a grant of summary judgment de novo. Love v.

National Med. Enter.,

(5th Cir. 2000). Summary

judgment is appropriate when, considering all of the admissible

evidence and drawing all reasonable inferences in the light most

favorable to the nonmoving party, there is no genuine issue of

material fact and the moving party is entitled to judgment as a

matter of law. FED. R. CIV. P. 56(c); Little v. Liquid Air Corp.,

(5th Cir. 1994)(en banc). If the moving party

meets the initial burden of showing that there is no genuine

issue, the burden shifts to the nonmoving party to produce

evidence or set forth specific facts showing the existence of a

genuine issue for trial. FED. R. CIV. P. 56(e); Celotex Corp. v.

Catrett,

(1986).

Subject to several exceptions, the FTCA waives the sovereign

immunity of the United States, making it liable in tort “in the

same manner and to the same extent as a private individual under

like circumstances,”

, for certain damages No. 00-31080 -3-

“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.”

(b); see Johnson v. Sawyer,

(5th Cir. 1995). Under

(h), however,

the FTCA shall not be applicable to “[a]ny claim arising out of

assault, battery, false imprisonment, false arrest, malicious

prosecution, abuse of process, libel, slander, misrepresentation,

deceit, or interference with contract rights.” (emphasis added).

In factual circumstances almost identical to those here, this

court has held that allegations of sexual misconduct or assault

are excludable under § 2680(h), because they amount to “assault”

or “battery.” Garcia v. United States,

(5th

Cir. 1985).

As for Stidham’s claim of intentional infliction of

emotional distress, to determine if they are also excluded by §

2680(h), we look to the underlying conduct upon which the claim

is based. See Truman v. United States,

(5th

Cir. 1994). If the underlying conduct is a tort enumerated in §

2680(h), then the claim for intentional infliction of emotional

distress is barred. Id. In Truman, we considered a claim for

intentional infliction of emotional distress stemming from sexual

harassment. We concluded that the sexual harassment alleged did

not constitute assault or battery because there was never an

“offensive contact” or “imminent apprehension of harmful or No. 00-31080 -4-

offensive contact.” Id. at 596. Here, by contrast, the

underlying conduct did involve offensive contact. Stidham

alleges that the sergeants compelled her to engage in sexual

intercourse with them, and perform acts of oral sex. These

constitute an “offensive contact,” and therefore the underlying

conduct upon which the intentional infliction of emotional

distress claim is predicated constitutes a tort enumerated in §

2680(h). We agree with the district court that even if the claim

could escape our reading of Truman, it would rest on intentional

conduct that would exceed the line and scope of employment under

Louisiana law.

Accordingly, the judgment of the district court is AFFIRMED.