United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA, UNITED STATES DISTRICT JUDGE
Cody Lamberth 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.
This matter is before the court on defendant United
States's Motion to Dismiss. (Doc. 6.) 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.
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 knee injury between 2013 and
2014. Wisner was a physician's assistant
(“PA”) for the VA, but was referred to as
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 genitals without
gloves. Plaintiff further claims that Wisner used his
position to elicit unnecessary private information from him.
And plaintiff states 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.
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.
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).
Scope of Employment
characterizes Wisner's conduct as “sexual
misconduct.” Applying this characterization, defendant
argues that the court lacks jurisdiction because Wisner's
conduct was not within the scope of his employment. Sexual
battery and/or inappropriate touching are not within the
duties that a PA is hired to perform, defendant argues, and
did not further the VA's business.
the FTCA, the United States is liable only for tortious acts
committed by employees “acting within the scope of
[their] office or employment.” 28 U.S.C. §
1346(b)(1). “Scope of employment” is determined
by the law of the place where the accident occurred.
Fowler v. United States, 647 F.3d 1232, 1237 (10th
Cir. 2011); see also 28 U.S.C. § 1346(b)(1). In
Kansas, an employee acts within the scope of his employment
when (1) he performs services for which he has been employed,
or (2) he does anything reasonably incidental to his
employment. O'Shea v. Welch, 350 F.3d 1101, 1103
(10th Cir. 2003) (citing Pattern Instructions Kansas 3d
107.06; Williams v. Cmty. Drive-In Theater, Inc.,
520 P.2d 1296, 1301-02 (Kan. 1974)). The test is not whether
the employer expressly authorized or forbid the conduct.
Id. Instead, the ...