United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA UNITED STATES DISTRICT JUDGE
John Doe OJ 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 and 38 U.S.C. § 7316(a), (f), alleging
that Wisner conducted an improper and/or unnecessary physical
examination of plaintiff and elicited unnecessary private
information. Plaintiff also alleges several state law claims.
This matter is before the court on defendant United States of
America's Motion to Dismiss (Doc. 8). 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.
Factual Background and Legal Standards
is a veteran who sought treatment at the Dwight D. Eisenhower
VA Medical Center (“VA”) located in Leavenworth,
Kansas. Wisner treated and provided medical care for
plaintiff. Wisner was a physician's assistant
(“PA”) for the VA, and is a defendant in more
than seventy pending civil suits before this court.
claims in this case are virtually identical to those in a
number of other cases this court has considered. See,
e.g., Anasazi v. United States, No. 16-2227-CM,
2017 WL 2264441, at *1-*2 (D. Kan. May 23, 2017); Doe v.
United States, No. 16-2162-CM, 2017 WL 1908591, at *1-*2
(D. Kan. May 10, 2017). The court will not repeat the details
of them here. Highly summarized, they are: (1) Count I:
Negligence - Medical Malpractice; (2) Count II: Negligent
Supervision, Retention and Hiring; (3) Count III: Negligent
Infliction of Emotional Distress; (4) Count IV: Outrage; (5)
Count V: Battery; and (6) Count VI: Invasion of Privacy -
Intrusion Upon Seclusion.
the court has set forth the governing legal standards in a
number of other cases involving the same parties and claims.
The court does not repeat them here, but applies them as it
has in the past. See, e.g., Anasazi, 2017
WL 2264441, at *2; Doe, 2017 WL 1908591, at *2.
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).
court has repeatedly held that plaintiffs with similar
allegations to those here have sufficiently alleged that
Wisner's conduct was within the scope of his employment.
See, e.g., Anasazi, 2017 WL 2264441, at *4;
Doe, 2017 WL 1908591, at *4. The court also has held
that plaintiffs with similar allegations have presented
plausible claims that the VA Immunity Statute applies,
allowing them to pursue remedies under the FTCA for claims
arising out of a battery. See, e.g.,
Anasazi, 2017 WL 2264441, at *5; Doe, 2017
WL 1908591, at *4. While defendant disagrees with these
rulings, it does not challenge these arguments again here.
The court therefore turns to the arguments that defendant
does raise with respect to this plaintiff.
Count II - Negligent Supervision, Hiring, and
the court has previously dismissed other plaintiffs'
claims for negligent hiring and retention based on the
discretionary function exception to the FTCA. See,
e.g., Anasazi, 2017 WL 2264441, at *8-*9;
Doe, 2017 WL 1908591, at *8. Plaintiff now asks the
court to deny defendant's motion with respect to these
claims because the VA had mandatory duties under the U.S.
Constitution. Plaintiff only makes this argument in his
response brief, however-he does not allege constitutional
duties or violations in his complaint. Because the
allegations of constitutional violations are not included in
plaintiff's complaint, the court does not consider
whether allegations of constitutional violations would be
sufficient to take plaintiff's claims for negligent
hiring and retention outside the discretionary function
exception. These claims are dismissed for the same reasons
given before. See, e.g., Anasazi, 2017 WL
2264441, at *8-*9; Doe, 2017 WL 1908591, at *8.
the negligent supervision claim, the court has allowed this
claim to proceed. See, e.g., Anasazi, 2017
WL 2264441, at *7; Doe, 2017 WL 1908591, at *6.
Defendant now proffers a new argument for dismissal:
plaintiff's negligent supervision claim is subsumed in
his negligent hiring and retention claims, and it should
likewise be dismissed under the discretionary function
exception. Specifically, defendant wants the court to
disregard plaintiff's characterization of his harm being
based on the VA's negligent supervision of Wisner.
Instead, defendant wants the court to look beyond
plaintiff's characterization and see that the injuries
were actually “caused by the VA's decisions to
hire, retain, and discipline Wisner-decisions which are
inherently discretionary and which this [c]ourt has
previously held fall squarely within the discretionary
function exception.” (Doc. 9, at 11.) In other words,
defendant asks the court to hold that plaintiff's
negligent supervision claim is an impermissible attempt to
circumvent the discretionary function exception, so it must
be dismissed along with the negligent hiring and retention
court has previously set forth the law at length on the
discretionary function exception. See, e.g.,
Anasazi, 2017 WL 2264441, at *6-*9; Doe,
2017 WL 1908591, at *5-*8. For brevity, the court does not
repeat it here, but incorporates it by reference.
new arguments are not persuasive for at least two reasons.
First, plaintiff has pleaded that he suffered damages because
of defendant's inadequate supervision of Wisner. The
court accepts these allegations as true at this stage of the
litigation. Second, in Kansas, negligent supervision is a
separate cause of action from negligent hiring and retention.
Marquis v. State Farm Fire & Cas. Co., 961 P.2d
1213, 1223 (Kan. 1998). Negligent supervision is not subsumed
into negligent hiring or retention. For these reasons, as
well as those ...