OPINION AND ORDER This civil action relates principally to sexual abuse inflicted by defendant Colin Akparanta, a former correctional officer at the Metropolitan Correctional Center, New York (“MCC”), against inmates at the MCC for a period spanning well over a decade.1 (Compl. 1.) Plaintiffs Karilie Herrera, Franchesca Morales and Carolyn Richardson assert that they were each sexually abused by Akparanta on multiple occasions in 2017 and 2018 while in the custody of the United States Bureau of Prisons (“BOP”) at the MCC. (Id.) Plaintiffs now bring claims against Akparanta pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), asserting violations of rights protected by the Fifth and Eighth Amendments to the United States Constitution. (Compl. 14.) Plaintiffs bring the same Bivens claims against Norman Reid, Ronald West, Stacey Harris, Shakiyl Collier, Troylinda Hill, Nicole Lewis and John and Jane Does 1-10,2 whom plaintiffs allege were “various agents, servants, and employees of” the BOP who “knew of and disregarded” Akparanta’s suspicious interactions with female inmates, some of which amounted to flagrant and obvious violations of the BOP’s and MCC’s protocols. (Compl.
3, 14.) Plaintiffs also bring claims pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §2671, et seq., against the United States of America for negligence, negligent infliction of emotional distress, and negligent hiring, retention, training, and supervision. The United States, Reid, West, Harris, Collier, Hill and Lewis (the “Moving Defendants”) now move to dismiss the Complaint under Rules 12(b)(1) and (6), Fed. R. Civ. P. Unlike Akparanta, none of the individual Moving Defendants is alleged to have directly sexually assaulted or abused one of the plaintiffs. As will be explained, the FTCA claims against the United States (Third, Fourth and Fifth Causes of Action) are in part premised upon the actions and inactions of the individual Moving Defendants in failing to report what they knew or suspected of Akparanta’s unlawful, reprehensible and repeated actions. Because the BOP maintained a mandatory reporting policy for suspected sexual abuse, the claims fall outside the discretionary function exception and the Court concludes that plaintiffs state a claim for relief on a failure to report theory. The Court also concludes under controlling Supreme Court precedent, e.g., Hernandez v. Mesa, 140 S. Ct. 735 (2020), that plaintiffs’ Bivens claims (First and Second Causes of Action) fall within the Supreme Court’s definition of a “new context” requiring the examination of “special factors,” including the availability of a remedy to plaintiffs against the United States under the FTCA. Faithful to precedent, the Court concludes that the Bivens remedy ought not be extended in this context. The Moving Defendants’ motion to dismiss will therefore be granted in part and denied in part. BACKGROUND The Court summarizes the Complaint’s factual allegations, and, for the purposes of the motion, accepts them as true, drawing all reasonable factual inferences in favor of the plaintiff as the non-movant. See Tandon v. Captain’s Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014) (Rule 12(b)(1)); In re Hain Celestial Grp., Inc. Sec. Litig., 20 F.4th 131, 133 (2d Cir. 2021) (Rule 12(b)(6)). The Court will review any disputed jurisdictional facts by also referencing evidence outside the pleadings, such as affidavits. Tandon, 752 F.3d at 243. A. The Parties Plaintiffs Karilie Herrera, Franchesca Morales and Carolyn Richardson were inmates incarcerated at the MCC. Herrera was incarcerated at the MCC from 2017 until 2019, Morales was incarcerated at the MCC from 2015 to 2016 and then from 2017 to 2018, and Richardson was incarcerated at the MCC from 2017 to 2020. (Compl.
