United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA UNITED STATES DISTRICT JUDGE
Russell Morris 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 improper and/or unnecessary physical
examinations 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. 17). 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.
does not rehash the same arguments that it made in previous
cases about scope of employment and the VA Immunity Statute.
But defendant does argue that the allegations in
plaintiff's amended complaint change the outcome for
claims that this court has previously ruled can proceed.
Specifically, defendant argues that new allegations take
“Wisner's behavior outside the realm of
‘negligence' or ‘mistake, ' and [move] it
squarely into the realm of intentional sexual assault.”
(Doc. 18, at 2.) Defendant claims that plaintiff's new
allegations are inconsistent with the position that Wisner
engaged in conduct that was a slight deviation from his scope
of employment, and asks the court to revisit its prior
findings. The court addresses this, along with the other new
arguments of defendant, below.
Scope of Employment
noted above, the court has previously found that plaintiff
plausibly pleaded that Wisner's acts were within the
scope of his employment. See, e.g.,
Anasazi, 2017 WL 2264441, at *4; Doe, 2017
WL 1908591, at *4. Now, with plaintiff's new allegations,
defendant asks the court to reconsider this holding.
with plaintiff's new allegations, the analysis does not
change for the court. Applying the “slight
deviation” factors from O'Shea v. Welch,
350 F.3d 1101, 1108 (10th Cir. 2003), the court determines
that plaintiff has still adequately pleaded that Wisner's
conduct was within the scope of his employment because it was
only a slight deviation from his duties. Once again, these
factors are: (1) the employee's intent; (2) the nature,
time, and place of the deviation; (3) the time consumed in
the deviation; (4) the work for which the employee was hired;
(5) the incidental acts ...