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Riscoe v. United States

United States District Court, D. Kansas

April 20, 2017

GERALD MICHAEL RISCOE, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM AND ORDER

          CARLOS MURGUIA, UNITED STATES DISTRICT JUDGE

         Pro se plaintiff Gerald Michael Riscoe filed this action pursuant to the Federal Tort Claims Act (“FTCA”), claiming that defendant United States of America/Food and Drug Administration negligently approved a drug-diethylstilbestrol (“DES”)-that would cause sexual identity reversal, or what was formerly known as “true hermaphroditism, ” in offspring. Defendant filed a Motion to Dismiss (Doc. 27), arguing that the court lacks subject matter jurisdiction over plaintiff's claim and, in any event, the claim is barred by the statute of limitations. For the following reasons, the court grants defendant's motion.

         I. Standards of Review

         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, however, there is a strong presumption against federal jurisdiction. Sobel v. United States, 571 F.Supp.2d 1222, 1226 (D. Kan. 2008).

         Motions to dismiss 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). Here, defendant has brought a facial challenge, so the court accepts the plaintiff's factual allegations regarding jurisdiction as true. Id. at 1002.

         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). “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).

         II. Discussion

         Plaintiff's claim in this case is based on the regulatory actions (or failure to act) of the FDA. Specifically, plaintiff claims that the FDA acted negligently in regulatory matters related to DES, a drug that plaintiff's mother took during her pregnancy in 1952 (among other times). Plaintiff claims that the FDA's actions led to extremely negative side effects for both his mother and him. The court will not repeat the details of these side effects here, as they are not central to the court's decision, and plaintiff has expressed a desire to maintain his privacy.

         Based on plaintiff's allegations, there are two alternative and independent reasons why this court must dismiss plaintiff's complaint. First: The government is not liable for a regulatory agency's performance of its regulatory duties under the FTCA. Second: Plaintiff's claim is time-barred, even allowing for some tolling of the statute of limitations.

         A. Subject Matter Jurisdiction

         Under the FTCA, the United States waives sovereign immunity for injuries caused by the negligence of a federal employee acting in the scope of 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). But the plaintiff bears the burden to show that sovereign immunity has been waived. James v. United States, 970 F.2d 750, 753 (10th Cir. 1992) (citation omitted).

         Plaintiff claims that defendant waived its sovereign immunity because FDA employees negligently performed their regulatory duties when approving DES. A mere violation of a federal regulation, however, is insufficient to state a claim under the FTCA-there must be some other duty under state law. Klepper v. City of Milford, Kan., 825 F.2d 1440, 1448 (10th Cir. 1987) (“[W]here a negligence claim is based on a violation of a federal statute or regulation, no claim will lie under the FTCA in the absence of some other duty under the applicable state law.”). This is because the FTCA itself does not create a cause of action; it only waives immunity “under circumstances that would create liability in the same manner and to the same extent as a private individual under like circumstances.” Dorking Genetics v. United States, 76 F.3d 1261, 1266 (2d Cir. 1996); United States v. Agronics Inc., 164 F.3d ...


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