United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA United States District Judge
Kyle McIntosh 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 Wisner subjected him to
inappropriate sexual comments, improper physical
examinations, and solicitation of sexual acts. Plaintiff
claims that the court has supplemental jurisdiction over his
state claims against Wisner under 28 U.S.C. § 1367(a).
This matter is before the court on defendant United
States's Motion to Dismiss. (Doc. 9.) Defendant argues
that plaintiff's complaint should be dismissed for lack
of subject matter jurisdiction, insufficient service of
process, and because it fails to state a claim under Federal
Rules of Civil Procedure 12(b)(1), (5), and (6). Plaintiff
cured service and properly served defendant as required by
Fed.R.Civ.P. 4(i). (Docs. 22 and 23.) For the reasons set
forth below, the court denies defendant's motion.
is a disabled veteran who sought treatment at the Dwight D.
Eisenhower VA Medical Center (“VA”) located in
Leavenworth, Kansas. Wisner provided medical care for
plaintiff. Wisner was a physician's assistant
(“PA”) for the VA, but represented himself to
plaintiff as a medical doctor.
alleges that Wisner conducted inappropriate physical
examinations, made improper sexual comments and solicited
sexual acts from him. He claims that Wisner was negligent
when he violated the standard of care by conducting improper
and/or unnecessary examinations of plaintiff's genitalia
and by failing to wear gloves during these examinations.
Plaintiff claims that Wisner failed to recognize his own
impairment and refer plaintiff to another practitioner.
Plaintiff also claims that Wisner was acting within the scope
of his employment at the time he committed these acts-making
defendant vicariously liable for Wisner's misconduct.
states that in February 2015, Wisner executed a Consent Order
for Surrender, which was filed by the Kansas Board of Healing
Arts (“KBOHA”). Wisner admitted to using his
position as a PA to commit sexual batteries against VA
patients. In another letter, Wisner admitted that he was an
impaired practitioner not capable of patient care and that he
committed violations under Kan. Stat. Ann. § 65-28a05(a)
and other governing Kansas statutes and regulations.
also brings claims of negligent supervision and/or retention
against defendant. Plaintiff alleges that defendant-via the
VA-violated its duty to exercise reasonable care when it
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 alleges that VA supervisors failed to monitor
Wisner's clinical activities to ensure that they were
within the authorized scope of practice and medically
appropriate as required by VHA Directive 1063 and/or the
Physician Assistant Licensure Act (“PALA”), Kan.
Stat. Ann. § 65-28a01. Plaintiff claims that the VA had
knowledge of Wisner's misconduct, but failed to take
appropriate action to correct his misconduct.
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).
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.
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).
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).