United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA, UNITED STATES DISTRICT JUDGE.
John Doe HT2 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. 6). 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.
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:
Negligence - Medical Malpractice; (2) Count II: Negligent
Supervision, Retention and Hiring; (3) Count III: Battery;
and (4) Count IV: Invasion of Privacy.
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
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.
IV - Invasion of Privacy
the court has repeatedly addressed plaintiff's
allegations for invasion of privacy and found that they fail
to state a claim. See, e.g., Anasazi, 2017
WL 2264441, at *10-*11; Doe, 2017 WL 1908591, at
*10. Plaintiff has not made any arguments here that justify
altering the court's analysis. This claim is therefore
dismissed for the same reasons previously given.
IS THEREFORE ORDERED that defendant's motion to
dismiss (Doc. 6) is granted in part and denied in part. The
motion is granted as to Count IV. The motion is also granted
as to plaintiff's negligent hiring and retention claim in
Count II, ...