United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA United States District Judge
John Doe D.S. 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 made inappropriate sexual
comments. Plaintiff also alleges a state law claim for
outrage/intentional infliction of emotional distress. This
matter is before the court on defendant United States of
America's Motion to Dismiss (Doc. 15). Defendant argues
that plaintiff's complaint should be dismissed for lack
of subject matter jurisdiction under Federal Rules of Civil
Procedure 12(b)(1). For the reasons set forth below, the
court grants defendant's motion in part and denies it in
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 for the VA,
and is a defendant in more than eighty pending civil suits
before this court.
claims in this case are similar to claims in a number of
other cases this court has considered. See, e.g.,
Anasazi v. United States, No. 16-2227, 2017 WL
2264441, at *1-*2 (D. Kan. May 23, 2017); Doe D. E. v.
United States, No. 16-2162, 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:
Medical Malpractice - Negligence; (2) Count II: Negligent
Supervision, Retention, and Hiring; and (3) Count III:
Outrage/Intentional Infliction of Emotional Distress.
the court has set forth the governing legal standards in a
number of other cases involving the same parties and similar
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 D. E., 2017 WL 1908591,
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., Doe BF v. United States, No.
17-2088, 2017 WL 4355577, at *4-*5 (D. Kan. Oct. 2, 2017);
Almquist v. United States, No. 17-2108, 2017 WL
4269902, at *4-*5 (D. Kan. Sept. 25, 2017); Anasazi,
2017 WL 2264441, at *4; Doe D. E., 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., Doe BF, 2017 WL 4355577, at *5;
Almquist, 2017 WL 4269902, at *5; Anasazi,
2017 WL 2264441, at *5; Doe D. E., 2017 WL 1908591,
at *4. The court likewise allows plaintiff to proceed in this
unclear whether defendant still intends to pursue its
arguments that some of plaintiff's claims are barred by
the statute of limitations. Defendant did not address the
issue in its reply brief. Nevertheless, the court understands
that defendant does not wish to waive this argument. For the
reasons the court has held in other similar cases, the court
will not dismiss plaintiff's claims at this time for
violation of the statute of limitations. See, e.g.,
Lamberth v. United States, No. 16-2709, 2017 WL
747871, at *6-*7 (D. Kan. Feb. 27, 2017); Mathis v.
United States, No. 16-2322, 2017 WL 430074, at *7-*8 (D.
Kan. Jan. 31, 2017).
II - Negligent Supervision, Hiring, and
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 D.
E., 2017 WL 1908591, at *8. This outcome remains
appropriate despite plaintiff's argument that the VA had
mandatory duties under the U.S. Constitution. Doe
BF, 2017 WL 4355577, at *5-*6; Almquist, 2017
WL 4269902, at *5-*6.
the negligent supervision claim, the court has allowed this
claim to proceed in the past. See, e.g., Doe
BF, 2017 WL 4355577, at *6; Almquist, 2017 WL
4269902, at *6; Anasazi, 2017 WL 2264441, at *7;
Doe D. E., 2017 WL 1908591, at *6. For the reasons
the court has set forth in other related opinions,
defendant's motion is denied with respect to
plaintiff's claim for negligent supervision.
III - Outrage/Intentional Infliction of ...