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Doe v. United States

United States District Court, D. Kansas

September 13, 2017

JOHN DOE GM, Plaintiff,
v.
UNITED STATES OF AMERICA and MARK WISNER, P.A. Defendants.

          MEMORANDUM AND ORDER

          CARLOS MURGUIA, United States District Judge

         Plaintiff John Doe GM 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.

         I. Factual Background and Legal Standards

         Plaintiff 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.

         The 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.

         Likewise, 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.

         II. 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).

         This 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.

         A. Count II - Negligent Supervision, Hiring, and Retention

         First, 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.

         As for 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 claims.

         The 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.

         Defendant's 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 ...


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