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Mathis v. United States

United States District Court, D. Kansas

January 31, 2017

DARREN MATHIS, Plaintiff,
v.
UNITED STATES OF AMERICA and MARK WISNER, P.A. Defendants.

          MEMORANDUM AND ORDER

          CARLOS MURGUIA United States District Judge.

         Plaintiff Darren Mathis brings this case against defendants United States of America and Mark Wisner, pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671, alleging that defendant Wisner subjected him to unnecessary and/or improper examinations of his genitals and prostate. This matter is before the court on defendant United States's Motion to Dismiss. (Doc. 10.) Defendant argues that plaintiff's complaint should be dismissed for lack of subject matter jurisdiction and because it fails to state a claim under Federal Rules of Civil Procedure 12(b)(1) and (6). For the reasons set forth below, the court grants defendant's motion in part and denies it in part.

         I. Factual Background

         A. Allegations in This Complaint

         Plaintiff is a disabled veteran who sought treatment at the Dwight D. Eisenhower VA Medical Center (“VA”) located in Leavenworth, Kansas. Wisner treated plaintiff and provided medical care for plaintiff's back injuries between 2008 and 2014. Wisner was a physician's assistant (“PA”) for the VA, but was referred to as “Dr. Wisner.”

         In Count I, plaintiff claims that Wisner practiced and prescribed medicine, including the performance of physical examinations, under the close supervision of a VA physician. Plaintiff alleges that Wisner was negligent when he violated the standard of care by conducting improper and/or unnecessary examinations of plaintiff's genitalia and prostate and by failing to wear gloves during these examinations. Plaintiff further claims that Wisner used his position to elicit unnecessary private information from him. And plaintiff claims that Wisner's negligent acts occurred during business hours at the VA hospital and were reasonably incidental to his employment-making defendant vicariously liable for his acts.

         Plaintiff brings claims of negligent supervision, retention, and hiring against defendant in Count II. Plaintiff alleges that defendant-via the VA-violated its duty to exercise reasonable care when it employed, supervised, and retained Wisner. He states that defendant knew or should have known that Wisner was unable to provide competent medical care to plaintiff and that Wisner victimized and was dangerous to other patients. Plaintiff also claims that defendant possessed reason to believe that employment of Wisner would result in undue risk of harm to plaintiff and other patients.

         B. Allegations in Former Complaint

         This is not plaintiff's first case based on Wisner's actions. Defendant urges the court to consider plaintiff's claims raised in Mathis v. United States, Case No. 15-CV-9477. In that case, plaintiff stated, “This action arises from multiple incidents of sexual assault which occurred between 2008 and 2014.” Plaintiff claimed that the touching was wrong and not part of a normal physical examination. Defendant moved to dismiss and, in response, plaintiff voluntarily withdrew his case, and subsequently filed the current case.

         In the prior case, plaintiff characterized Wisner's conduct as sexual assaults, and alleged that he was repeatedly sexually molested. According to defendant, the court should not allow plaintiff to reframe his claims now as negligence or a medical malpractice claim.

         Plaintiff voluntarily dismissed his former complaint without prejudice. Generally, a voluntary dismissal without prejudice leaves the parties as though the action had never been brought. E.E.O.C. v. W.H. Braum, Inc., 347 F.3d 1192, 1201 (10th Cir. 2003). “This means that the dismissal ‘carries down with it previous proceedings and orders in the action, and all pleadings, both of plaintiff and defendant, and all issues, with respect to plaintiff's claim.'” Nat'l R.R. Passenger Corp. v. Int'l Ass'n of Machinists & Aerospace Workers, 915 F.2d 43, 48 (1st Cir. 1990); In re Piper Aircraft Distribution Sys. Antitrust Litig., 551 F.2d 213, 214 (8th Cir. 1977).

         The court will not consider plaintiff's allegations in his prior case. Although a Rule 12(b)(1) motion to dismiss allows a court to consider materials outside the pleadings to determine jurisdiction, this court will not look beyond this case's pleadings to incorporate allegations in a prior and distinct case-one that was voluntarily dismissed without prejudice. See Marrero v. Costco Wholesale Corp., 52 F.Supp.3d 437, 441 (D. P.R. 2014).

         II. Legal Standards

         A. Rule 12(b)(1)

         Dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) is appropriate when the court lacks subject matter jurisdiction over a claim. Plaintiff claims that subject matter jurisdiction exists and has the burden of establishing it. Port City Props. v. Union Pac. R.R. Co., 518 F.3d 1186, 1189 (10th Cir. 2008). Because federal courts are courts of limited jurisdiction, there is a strong presumption against federal jurisdiction. Sobel v. United States, 571 F.Supp.2d 1222, 1226 (D. Kan. 2008).

         Motions for lack of subject matter jurisdiction generally take one of two forms: (1) a facial attack on the sufficiency of the complaint's jurisdictional allegations; or (2) a challenge to the actual facts upon which subject matter jurisdiction is based. Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995). For a facial challenge, the court accepts the plaintiff's factual allegations regarding jurisdiction as true. Id. at 1002. But for a factual attack, the court does not presume that the plaintiff's allegations are true. Id. at 1003. Rather, “[a] court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such instances, a court's reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion.” Id.

         B. Rule 12(b)(6)

         To the extent this court has subject matter jurisdiction, the court must determine whether plaintiff's action is subject to dismissal because it fails to state a claim upon which relief could be granted. The court grants a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) only when the factual allegations fail to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although the factual allegations need not be detailed, the claims must set forth entitlement to relief “through more than labels, conclusions and a formulaic recitation of the elements of a cause of action.” In re Motor Fuel Temperature Sales Practices Litig., 534 F.Supp.2d 1214, 1216 (D. Kan. 2008). The allegations must contain facts sufficient to state a claim that is plausible-not merely conceivable. Id. “All well-pleaded facts, as distinguished from conclusory allegations, must be taken as true.” Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984); see also Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009). The court construes any reasonable inferences from these facts in favor of the plaintiff. Tal v. Hogan, 453 F.3d 1244, 1252 (10th Cir. 2006).

         III. Discussion

         Under the FTCA, the United States has waived its sovereign immunity for injuries caused by the “negligent or wrongful act or omission” of a federal government employee while that employee is “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). An action under the FTCA is the exclusive remedy for a plaintiff claiming personal injuries arising out of the negligent conduct of a federal employee, 28 U.S.C. § 2679(b)(1), and federal courts have exclusive jurisdiction over such actions, 28 U.S.C. § 1346(b)(1).

         A. Exhaustion ...


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